TERMS AND CONDITIONS OF SALE
1. DEFINITIONS. The following are the defined terms: “Seller” means Eldex Corporation. “Buyer” means the entity Offer is made or the entity purchasing Products and/or Services from Seller. “Products” means the products, parts, materials, and/or equipment and related Services (if any) included in Seller’s Quotes and/or Buyer’s Order. “Services” means services provided to support or configure the products, parts and/or equipment. “Offer” means the purchase order or other writing issued to purchase the Product. “Order” means the Offer once accepted by the Seller. “Quote” means any quotation, proposal, or other writing setting for the price and terms for purchasing Product is subject to and bound by these Terms and Conditions. Seller and Buyer are sometimes referred to herein individually as a “Party” and jointly as the “Parties”.
2. ORDERS. Buyer places an Offer with Seller for the Products. If the Offer is based on the Quote, the terms and conditions in the Quote shall be included in the Offer. All Quotes are valid for 30 days from the date of the Quote.
3. ACCEPTANCE. Seller will accept or reject the Offer within 5 business days of receipt. If Buyer does not receive notification of either acceptance or rejection by Seller within that time, the Offer is deemed rejected. Upon acceptance of the Offer, it becomes an Order subject to these Terms and Conditions and any new or differing terms and conditions included in Offer or other communications from Buyer prior to acceptance are rejected. No other terms or conditions shall apply to the Order other than these Terms and Conditions and those agreed to in writing by the Parties, if any.
4. PRICES AND TAXES. All prices, invoices, and payments are in U.S. Dollars. Unless otherwise agreed by Seller in the Order, all prices are inclusive of the Product in standard packaging only. 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 taxes, duties, and charges. Seller may adjust the Price of the Products if a Buyer request to delay the Delivery Date, that approved by Seller, and the delay is for 3 months or more. From time to time, Seller may increase the price for the Product. Orders received prior to the date of the price in case that are paid for no more than 1 week after the date of the price increase will be honored at the price at the time of the Order.
5. PAYMENT TERMS. Standard payment terms payment in advance. Upon account review, in its sole discretion, Seller may extent the payment term to net thirty (30) days from date of Seller’s invoice. Payment is due in advance for each Delivery of Product. Applicable taxes will be calculated at the time of invoicing, based on the shipping destination address, and added separately to the invoice. Buyer is responsible for remitting payment including taxes charged, unless a proper non-profit exemption, resale or other certificate based on state/local requirements is provided to Seller. Overdue invoices shall be subject to a late payment charge equal to the lesser of (i) one and one half percent (1 1/2%) per month or (ii) the maximum rate allowed by law. Buyer agrees to pay Seller for any and all costs and expenses (including without limitation reasonable attorneys’ fees) incurred by Seller to collect any amounts owed to it, enforce any of its rights or seek any of its remedies hereunder. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller. Any dispute relating to an invoice not raised to Seller within 30 days of the date of invoice are deemed waived.
6. INSPECTION. Buyer shall inspect to the Product within 15 days of receipt at its location and notify Seller of any material non-conformance of the Product with Seller’s documentation, including specification (“Non-Conforming Product”). Failure to provide a notice of non-conformance within this period, the Products are deemed accepted. If there is a Non-Conforming Product and Buyer provided the notice within 15 days, Buyer can either accept the Product as is and pay the amounts due in the Order or return it subject to the provisions of these Terms and
7. DELIVERY: TITLE AND RISK OF LOSS. Unless agreed otherwise by Seller in writing, all shipments shall be delivered F.O.B. (or FCA for non-domestic orders) origin at Seller’s shipping dock (“Delivery”). Risk of loss and title to Products shall pass upon such Delivery. If Seller prepays shipping, insurance, or other related charges, Buyer agrees to reimburse Seller promptly for such charges.
8. DELIVERY SCHEDULES AND FORCE MAJEURE. All dates for delivery of Products are approximate estimates only and subject to Buyer providing any necessary information or instructions. Seller shall not be liable for late delivery based on estimate dates. Performance under an Order will be excused in the case of a force majeure event, such as an unforeseeable event or occurrence beyond the reasonable control of Seller, and without its fault or negligence, including, but not limited to, acts of God, actions by any governmental authority, inability to obtain any necessary import or export licenses or other consents, terrorism, fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, supplier delays, labor problems (including lockouts, strikes, and slowdowns), inability to obtain power, utilities, materials, labor, equipment, transportation, or court injunction.
9. CHANGES. Buyer may request changes to the Order by providing written notice to Seller. Seller is not obligated to accept any requested changes. If Seller accepts the changes to the Order, the price and delivery dates will be adjusted on an equitable basis. Buyer and Seller will execute a modification to the Order with these new terms.
10. ORDER CANCELLATION. Unless agreed in writing by Seller, all Orders are non-cancellable and non-returnable (except as set forth in these Terms and Conditions). If a full or partial cancellation or return is approved in writing by Seller, such cancellation is subject to Seller’s Order policies and a restocking charge of 25% of the purchase price. All returned Products must be in new and unused condition and received by Seller no more than 30 days from date of Delivery to Buyer. Buyer shall pay all direct and indirect costs incurred by Seller as a result of the cancellation. Seller will notify Buyer of the amount owed, which amount shall be immediately due and payable to Seller.
11. TERMINATION. In the event that a Party is in breach of a material provision of the Order, the other Party shall submit a written notice to the breaching party identifying the breach. The breaching party has 30 days from receipt of such notice to cure the breach. If the breach is not cured within the 30 day cure period, the non-breaching party may terminate Order for cause. Either Party may immediately terminate Order without cause if the other Party is adjudicated bankrupt, files a petition for bankruptcy, makes an assignment for the benefit of creditors, or if an action under any law for the relief of debtors is taken.
12. LIMITED WARRANTY. Seller warrants that all Products shall be free from defects in material and workmanship, and materially conform to Seller’s specifications for a period equal to the period one year from Delivery. This warranty does not apply to any Products that have been (i) mishandled, misused, abused, or damaged by Buyer or any third party; (ii) altered from their original state; (iii) repaired by a party other than Seller without Seller’s prior written approval; or (iv) improperly stored, installed, operated, or maintained in a manner inconsistent with Seller’s instructions. This warranty does not apply to defects attributed to (i) normal wear and tear or (ii) failure to comply with Seller’s safety warnings. Seller, at its sole option, after confirmation of the defective Product, shall either repair or replace defective Products or issue a credit for the original price of the defective Products. Such repair, replacement, or credit shall be Buyer’s sole remedy for defective Products and Services. The warranty period for repaired or replaced Products shall be the greater of (i) 90 days or (ii) the unexpired portion of the original warranty period. Under no circumstances is Seller liable for recall, retrieval, removal, dismantling, re- installation, redeployment, or re-commissioning of any defective
Products or any associated costs. This warranty does not include consumable items (such as piston seals and valve cartridge). EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION, PRODUCT IS PROVIDED “AS IS” AND SELLER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
13. RETURN AUTHORIZATIONS. Return of Products as permitted in these Terms and Conditions are subject to Seller’s return authorization process and procedures. Buyer shall promptly notify Seller of any Non-Conforming Products or defect Products under the limited warranty, and provide Seller with evidence of the same reasonably acceptable to Seller or allow Seller to inspect the Products. Buyer shall return Products transportation and insurance prepaid in accordance with instructions issued by Seller. Failure to follow Seller’s return authorization procedures may result in lost Products, delays, additional service, restocking charges of 25% of the purchase price, warranty denial, or refusal of a return shipment. Products determined by Seller to be nonconforming or defective and covered by Seller’s warranty shall be replaced at Seller’s expense and shall be returned via ground transportation to Buyer at Seller’s expense. In no event shall Buyer retain or store Products for return for more than 30 days from identification for return.
14. TOOLING. Unless agreed otherwise by Seller in writing, all tooling, fixtures, equipment, tools, software, and designs produced, acquired, or used by Seller for the purposes of fulfilling Order shall remain the property of Seller.
15. PRODUCTION DISCONTINUATION; LAST-TIME BUY ORDERS. Seller may discontinue Products from time to time. Seller will issue last-time buy notice to customers. Seller shall use commercially reasonable efforts to provide customers a minimum of 60 days’ notice during which time customers may place orders for the discontinued Product. Seller’s acceptance of orders during this period shall be subject to Products availability. All such last time buy orders are non-cancellable, non-returnable and are fulfilled based on availability. For discontinued Products, no spare part or other consumables will be available unless the same are still in stock for current Products.
16. PROPRIETARY RIGHTS. Seller shall retain all right, title, and interest in and to any data, information, software programs, tools, specifications, templates, scripts, ideas, concepts, inventions, works of authorship, products, know-how, processes, techniques, and the like used or developed by Seller, its employees, and its subcontractors in connection with any Order. Buyer agrees that Seller retains all proprietary rights in and to all products, specifications, designs, discoveries, inventions, patents, copyrights, trademarks, trade secrets, and other proprietary rights relating to Products. Unless otherwise identified in writing to Seller, no information or knowledge heretofore or hereafter disclosed by Buyer in connection with any Order shall be deemed to be confidential or proprietary and any such information or knowledge shall be free from restrictions, other than a claim for patent infringement, as part of the consideration hereof.
17. PATENT, COPYRIGHT, AND TRADEMARK INDEMNIFICATION. Seller shall hold harmless and indemnify Buyer against all third party claims, judgments, costs, and fees, including reasonable attorney fees, relating to infringement of any patent, copyright, trademark, or design that are finally awarded by a court of competent jurisdiction or settlement agreement. Buyer notifies Seller in writing of any such claim as soon as reasonably practicable, and allows Seller to control, and reasonably cooperates with Seller in, the defense of any such claim and related settlement negotiations and has in no way acted to the prejudice of the Seller’s ability to control and defend such claims. Seller shall have no obligation under this Section to the extent any claim is based on (i) modifications of Products or deliverables by a party other than Seller or Seller’s authorized representative; (ii) the combination, operation, or use of Products with equipment, devices, software, or data not supplied by Seller; (iii) the use or installation of Products in a manner Products were not intended by the Seller in its documentation; (iv) Buyer’s failure to use
updated or modified versions of Products provided by Seller; or (v) the negligent acts or omissions or willful misconduct of Buyer, its employees, representatives, or affiliates. This Section, and the indemnification provided herein, does not apply to any custom Products made to Buyer’s requirements and specifications. Seller believes or it is determined that the Products are infringement, it may, at its sole option and expense, either (i) modify the affected Products to be non-infringing; or (ii) obtain for Buyer a license to continue using such Products on substantially the same terms set forth herein; or (iii) if neither of the foregoing alternatives are reasonably available to Seller, Seller may require Buyer to return the infringing Products and all rights thereto, and refund to Buyer the price paid to Seller by Buyer for the infringing Products. THE FOREGOING CONSTITUTES THE ENTIRE LIABILITY OF SELLER AND BUYER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
18. EXPORT COMPLIANCE. All Products, Services, and technical information provided by Seller to Buyer are subject to the export control laws and regulations of the United States of America including, without limitation, the International Traffic in Arms Regulation (ITAR) and the Export Administration Regulations (EAR), and may be subject to export and/or import regulations in other countries. Buyer agrees and hereby covenants that it will not export or re-export Products to Cuba, Iran, North Korea, Sudan, Syria, or to any restricted/embargoed country as may be designated from time to time by the U.S. Government unless otherwise authorized by the U.S. Government. Buyer acknowledges that U.S. law prohibits the sale, transfer, export, re-export to, or participation in any export transaction involving Products with individuals or companies listed in (i) the U.S. Department of Commerce’s Denied Persons List, Entity List, or Unverified List; (ii) the U.S. Department of Treasury’s Specially Designated Nationals and Blocked Persons Lists; or (iii) the U.S. Department of State’s Debarred Persons List. Buyer agrees to indemnify and hold Seller harmless from any claims or liability arising from Buyer’s failure to comply with all such export control laws and regulations. The Parties each agree to provide to the other in a timely manner such information and assistance as may reasonably be required in connection with securing any required authorizations or licenses. The delivery schedules are calculated from the date of receipt of any required export license(s). Seller shall commence performance only after receipt of a valid export license(s) from the appropriate U.S. Government agencies or other applicable governmental agencies; provided, however, Buyer may, at its sole risk, authorize Seller to commence performance under the Order prior to receipt of an export license. In such case, Buyer agrees that it is fully liable to Seller for all costs incurred by Seller in the performance of Order and shall reimburse Seller for such costs even if the Order is cancelled due to inability to obtain the appropriate licenses or approvals.
19. CONFIDENTIALITY. Buyer shall keep confidential and not directly or indirectly disclose to any third party any Confidential Information of Seller, as defined herein, without Seller’s prior written consent. “Confidential Information” includes, but is not limited to, business, financial, statistical, and commercial information, pricing, technical data and information, formulae, analyses, trade secrets, ideas, methods, processes, know how, computer programs, designs, data sheets, schematics, configurations, and drawings. Confidential Information does not include information that (i) is or becomes generally available to the public other than as a result of disclosure by Buyer; (ii) is or becomes available to Buyer on a non-confidential basis from a source other than Seller when such source is not, to the best of Buyer’s knowledge, subject to any confidentiality obligation with Seller; or (iii) was independently developed by Buyer without reference to Seller’s Confidential Information, and Buyer can verify development of such information by written documentation.
20. LIMITATION OF LIABILITY. IN NO EVENT WILL SELLER BE LIABLE UNDER OR IN CONNECTION WITH AN ORDER OR THESE TERMS AND CONDITIONS, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) COST TO COVER; OR (e) LOSS,
DAMAGE OR INJURY RESULTING FROM FAILURE TO COMPLY WITH PRODUCT DOCUMENTATION (INCLUDING ANY WARNINGS SET FORTH THEREIN), IN EACH CASE REGARDLESS OF WHETHER SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO SELLER UNDER THE APPLICABLE ORDER RELATED TO THE CLAIM.
21. COMPLIANCE WITH LAWS AND DOCUMENTATION. Buyer warrants and represents that Buyer will use any and all Products in accordance with all applicable laws and regulations, including the laws and regulations of the jurisdictions in which the Products are purchased, resold, integrated, or used. Buyer will use the Products in accordance to the documentation provided by Seller. Seller is not liable for any claims, damages, costs or penalties for use outside of Seller’s documentation, including failures to comply with any warnings and guidance therein.
22. GOVERNING LAW. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of California, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Neither (i) the United Nations Convention on Contracts for the International Sale of Products; (ii) the 1974 Convention on the Limitation Period in Contracts for the International Sale of Products (hereinafter referred to as the “1974 Convention”); nor (iii) the Protocol Amending the 1974 Convention held at Vienna, Austria, on April 11, 1980, apply in any manner to the interpretation or enforcement of Seller’s Offer, or Buyer’s Order.
23. RELATIONSHIP OF THE PARTIES. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
24. NO THIRD PARTY BENEFICIARIES. There are no third party beneficiaries for any Order or related to these Terms and Conditions.
25. NOTICES. All notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) the first business day after sending by email (provided email shall not be sufficient for notices for legal claims and indemnifiable claims). Notices to each Party shall be addressed to addresses set forth in the Order or as otherwise provided by written notice from one Party to the other Party. Email addresses may be designated on the Order.
26. ASSIGNMENT. Neither Party may assign, delegate, sublicense, or transfer their obligations or rights hereunder without the other Party’s written consent. Notwithstanding the foregoing, Seller may subcontract work to be performed under Order to third parties at any time without consent. Each Party may assign its rights and obligations for an Oder to any successor, by way of merger, consolidation, or the acquisition of substantially all of the business and assets; provided, however, that such successor shall expressly assume all of the assignor’s obligations and liabilities under Order. In the event of an assignment by Buyer under this Section, Seller may terminate an Order if it believes performance under the order would violate applicable laws or regulations or if the successor entity’s credit is not equal to or greater than that of the Buyer.
27. SEVERABILITY. If any provision of an Order, including these Terms and Conditions, is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of Order or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that
any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify the Order so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible
28. WAIVER. The failure by either Party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
29. REMEDIES. Remedies available to Seller are cumulative, and additional to any remedies provided at law or in equity.
30. COSTS. Buyer shall pay all Seller’s costs and expenses, including attorney’s fees, incurred by Seller in exercising any of its rights or remedies hereunder or enforcing any of the terms or conditions hereof.
31. SEVERABILITY. If any term, condition, or provision herein is invalid, ineffective, or unenforceable under present or future laws, then the remainder of the terms, conditions, and provisions shall remain in full force and effect, and shall in no way be affected, impaired, or invalidated.
32. HEADINGS. The headings used herein are for reference purposes only and shall not affect the meaning or interpretation of any term, condition, or provision herein.
33. SURVIVAL. Any Section or provision herein which contemplates performance or observance subsequent to any termination or expiration of an Order, or which by its nature should survive, shall survive any termination or expiration of the Order and continue in full force and effect.
34. ENTIRE AGREEMENT. The Order, which includes these Terms and Conditions, contain the complete understanding and agreement of the Parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein. Any waiver, modification or amendment of any provision of an Order, including these Terms and Conditions, will be effective only if in writing and signed by duly authorized representatives of the Parties.