1. BUYER’S TERMS AND CONDITIONS.
Electro Sonic Group,
Inc. (“Seller”) desires to provide its customers with prompt and efficient
service. However, to negotiate individually the terms and conditions of each
contract would substantially impair Seller’s ability to provide such service.
Accordingly, goods furnished by Seller are sold only on the terms and
conditions stated herein. Notwithstanding any terms or conditions of Buyer’s
order, any sale by Seller to Buyer is expressly made conditional on Buyer’s
agreement to Seller’s Terms and Conditions. Any conflicting, additional or
different statements or terms listed on the Buyer’s purchase orders, invoices,
confirmations or other Buyer generated documents, whether heretofore or
hereafter submitted, are of no effect.
2. DELIVERY.
Title to all goods shall pass to Buyer upon delivery
to Buyer’s carrier, or common carrier. Seller shall not be liable for delays in
delivery or for failure to perform due to any causes, including, without
limitation, acts of God, acts or omissions of Buyer or civil or military
authorities, fires, strikes, epidemics, quarantine restriction, flood, earthquakes,
riot, war, delays in transportation or inability to obtain necessary labor,
materials or supplies. In the event of any delay, the contractual date of delivery,
if any, shall be extended for a period equal to the time lost as a consequence of
such delay without penalty to Seller. Seller shall be entitled to refuse or to delay
shipments for failure by Buyer to pay promptly any payments due Seller,
whether on this or any other contract between Seller and Buyer. Seller shall
have the right to deliver all goods covered hereby at one time or in portions.
3. ACCEPTANCE AND CANCELLATION OF ORDERS.
All
orders are subject to acceptance in writing by Seller. Any written
acknowledgment or receipt of an order shall not, in and of itself, constitute such
acceptance. Orders accepted by Seller may be cancelled by Buyer only upon
written consent of Seller. In the event of cancellation or other withdrawal of an
order for any reason, and without limiting any other remedy which Seller may
have as a result of such cancellation or other withdrawal, cancellation or
restocking charges, which shall include all expenses then incurred on
commitments made by Seller, shall be paid by Buyer to Seller. Buyer requests
to reschedule are subject to acceptance by Seller in its sole discretion. Orders
may not be cancelled or rescheduled after the order has been submitted by Seller
to the shipment carrier. Seller reserves the right to allocate sales and limit
quantities of selected goods among its Buyers in its sole discretion. Good
specifications and availability are subject to change without prior notice.
4. TERMS
Terms of payment are net thirty days from date of invoice
unless otherwise specified by Seller in writing. In the event that payment is not
received within such thirty day period, any unpaid balance shall commence to
bear interest at the rate of 12% per annum from the 31st day after invoice.
5. PRICES AND TAXES.
Orders are billed at the prices in effect at
the time of shipment. Prices are exclusive of taxes, impositions and other
charges, including, but not limited to, applicable federal, state, provincial and
local sales, use, excise, value-added and similar taxes or charges imposed by
such authority, international shipping charges, forwarding agent's and broker's
fees, bank fees, consular fees, and document fees. In the event Seller receives
notification from the manufacturer after an order has been accepted but prior to
shipment that the price of the good has increased, Seller shall be entitled to
increase the price of the good commensurate with such increase, and the Buyer
shall either accept such price increase or terminate the order.
6. LIMITED WARRANTIES AND REMEDIES.
Seller warrants
that, at the time of delivery, the goods covered hereby are in accordance with
their manufacturer’s specifications, but makes no other warranty with respect
to such goods. Seller agrees, as Seller shall elect, to credit the account of Buyer
or replace without charge to Buyer all goods which at the time of delivery are
not in such condition, but only if Buyer returns such goods within 20 days from
the date of delivery, in original package and condition of delivery, to Seller,
accompanied by a specification in writing of the defects involved. Buyer shall
notify Seller in each instance when Buyer intends to return goods which Buyer
believes are not in accordance with such original condition and Seller shall be
entitled to examine such goods at Buyer’s facilities prior to their return. Final
inspections and conclusive determination whether goods are in accordance with
such original condition shall be made at Seller’s plant, or may be based upon
the manufacturer’s actual test report. SELLER’S SOLE LIABILITY SHALL
BE AT ITS OPTION TO CREDIT THE ACCOUNT OF BUYER OR TO
REPLACE GOODS WHICH ARE NOT IN ACCORDANCE WITH
SELLER’S LIMITED WARRANTY IN ACCORDANCE WITH THE
TERMS HEREOF AND IN NO EVENT SHALL SELLER BE LIABLE FOR
INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGE OF ANY KIND.
The foregoing remedy as provided herein shall be the sole and exclusive remedy
of the Buyer.
In no event shall the liability of Seller relating in any way to any good exceed
the purchase price for such good, regardless of the legal theory asserted for such
liability, whether in contract, tort, warranty or otherwise. Buyer acknowledges
that the amounts payable for the goods are based in part on these limitations,
and Buyer further agrees that these limitations shall apply notwithstanding any
failure of essential purpose of any limited remedy. Some states may not allow
the exclusion or limitation of incidental or consequential damages. In the event
a state does not, the above exclusion or limitation shall apply to the maximum
extent allowed by law.
EXCEPT AS STATED IN THIS SECTION, THERE ARE NO
WARRANTIES, EXPRESS OR IMPLIED (EITHER IN FACT OR BY
OPERATION OF LAW), INCLUDING WITHOUT LIMITATION, ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR
PARTICULAR PURPOSE, WHICH EXTEND BEYOND THOSE
EXPRESSLY PROVIDED FOR ON THE FACE HEREOF. SELLER SHALL
NOT BE LIABLE FOR ANY DAMAGES DUE TO DELAY IN
DELIVERIES, SERVICE, USE OR OTHER PERFORMANCE AS
SPECIFIED IN THIS AGREEMENT.
7. INFRINGEMENT DISCLAIMER.
Buyer acknowledges and
understands that Seller is not the manufacturer of any goods ordered or to be
supplied to Buyer and is not liable to Buyer or any third party for any copyright,
design or patent issue, right or claim that may arise in relation to any good.
8. TECHNICAL DATA.
Buyer shall not use, duplicate or disclose
any technical data delivered or disclosed by Seller to Buyer for any purpose
other than for installation, operation or maintenance of goods purchased by
Buyer without Seller’s prior written consent. Further, to the extent Seller offers
technical assistance or suggests alternative parts based on technical information
available to Seller, Seller DOES NOT GUARANTEE that this assistance is
correct or that suggested part alternatives are based on the most recent data or
that our interpretation and accuracy of the data is correct. Buyer is solely
responsible for confirming the validity of the assistance and the specifications
as well as determining the appropriateness and compatibility in selecting part(s)
for their application.
9. DISPUTES AND GOVERNING LAW.
All disputes under, and
with respect to any contract concerning the goods not otherwise resolved
between Seller and Buyer shall be governed by and construed in accordance
with the laws of Ontario, Canada, excluding laws directing the application of
the laws of another jurisdiction, and Buyer hereby consents to such exclusive
jurisdiction; provided, however, that in Seller’s sole discretion such action may
be heard in some other place designated by Seller (if necessary to acquire
jurisdiction over third persons), so that the dispute can be resolved in one action.
Buyer agrees to appear in any matter connected with the goods furnished by
Seller. NO ACTION MAY BE BROUGHT BY BUYER MORE THAN SIX
(6) MONTHS AFTER THE CAUSE OF ACTION HAS ACCRUED.
Notwithstanding the foregoing, the following laws are excluded from these
terms and conditions: The 1980 United Nations Convention on Contracts for
the International Sale of Goods, the United Nations Convention on the
Limitation Period in the International Sale of Goods and the Uniform Computer
Information Transactions Act.
10. INTEGRATION AND ASSIGNMENT.
These Terms and
Conditions contain the entire and only agreement between the parties with
respect to the goods, and any representation, promise or warranty herein not
specifically incorporated herein in writing shall not be binding on either party.
These Terms and Conditions may be modified only by a writing signed by
Seller.
11. SHORTAGES.
Any claims of shortage must be reported to Seller
within four days after receipt of shipment.
12. RETURNS.
Returns that are not NC/NR will be accepted if a
request for return is received within sixty (60) days of the invoice date. If Buyer
desires to return goods, Buyer must contact a Seller sales representative to
request a Return Material Authorization (“RMA”) number. The goods must be
returned as directed by the location issuing the RMA. The RMA number must
be clearly visible on each return package, and all returns must be accompanied
by the original invoice number, be in the original packaging, and be in resalable
condition. A Military Specification (“Mil-Spec”) good purchased from Seller
is liable to be considered non-cancelable and non-returnable. To the extent that
Seller purchases a good from a manufacturer specifically for Buyer, such goods
may be Non-Cancelable/Non-Returnable. If the RMA is approved:
A. Buyer is responsible for all shipping costs for return of the
goods to Seller.
B. Any merchandise approved for return by Seller is subject to a
restocking fee equivalent to 25% of such good(s).
C. RMA is only valid for 30 days after RMA has been issued to
the Buyer.
13. INTERNATIONAL SHIPMENTS.
Buyer shall be responsible
for all applicable VAT, PST, HST, and/or GST charges along with brokerage
fees, which shall be due at the time of delivery.
14. GOOD COUNTRY OF ORIGIN.
When provided by the
manufacturer, Seller maintains country of origin information on goods in its
inventory. Such information does not include the country of origin of each raw
material or subcomponent that is incorporated into the manufacturer's final
good. Upon request, Seller will provide to Buyer the manufacturer-provided
country of origin information.
15. GEOGRAPHIC LIMITATIONS ON USE.
Although Seller’s
website is accessible worldwide, not all goods offered by Seller are available to
all persons or in all geographic locations. Seller reserves the right to limit the
availability and/or quantity of its goods to any person, geographic area or
jurisdiction. Buyer agrees to comply with all applicable laws and local rules
regarding the transmission of technical data, acceptable content and online
conduct.
16. GOOD SAFETY NOTICE AND RESTRICTIONS.
Goods are
intended for commercial use only. Seller does not determine the specifications
or conduct any performance or safety testing of any goods that it sells.
Specification sheets provided to Buyers are produced by the manufacturer or
transcribed from information provided by the manufacturer. Any reference to
military specifications on Seller's website is for reference only and does not
modify these terms and conditions. Seller does not participate in any good
safety engineering, good safety review or good safety testing. Seller cannot
provide any safety testing, safety evaluation or safety engineering services.
17. STATEMENT REGARDING GOODS.
All statements, technical
information, and recommendations related to Seller’s goods are based on
information believed to be reliable, but the accuracy or completeness thereof is
not guaranteed. Before utilizing the good, the Buyer should determine the
suitability of the good for its intended use. The Buyer assumes all risks and
liability whatsoever in connection with such use.
18. NO USE AS CRITICAL COMPONENTS.
Goods sold by Seller
are not designed, intended or authorized for use in life support, life sustaining,
human implantable, nuclear facilities, flight control systems, or other
applications in which the failure of such goods could result in personal injury,
loss of life or catastrophic property damage. If Buyer uses or sells the goods
for use in any such applications: (1) Buyer acknowledges that such use or sale
is at Buyer's sole risk; (2) Buyer agrees that Seller and the manufacturer of the
goods are not liable, in whole or in part, for any claim or damage arising from
such use; and (3)
BUYER AGREES TO INDEMNIFY, DEFEND AND
HOLD SELLER AND THE MANUFACTURER OF THE GOODS
HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS,
DAMAGES, LOSSES, COSTS, EXPENSES AND LIABILITIES
ARISING OUT OF OR IN CONNECTION WITH SUCH USE OR SALE.
19. INDEMNIFICATION.
Buyer understands and agrees that it is
personally responsible for its use or inability to use the goods or Buyer's reliance
upon any information or recommendation provided by Seller’s personnel.
Buyer agrees to indemnify, defend and hold harmless Seller and its business
partners, employees and agents from and against all claims, losses, expenses,
damages and costs (including, but not limited to, direct, incidental,
consequential, exemplary and indirect damages), and reasonable attorneys' fees,
resulting from or arising out of Buyer's use, misuse, or inability to use the goods
or the Seller’s website, Buyer's reliance upon any information or recommendation provided by Seller’s personnel, or any violation by Buyer of
this Agreement.
20. EXPORT CONTROL.
Buyer understands that the goods it
purchases may be subject to export, re-export, or other restrictions under the
laws of the country of manufacture, the country of the seller/distributor, and the
country in which the Buyer resides. Therefore, Buyer, on behalf of itself, its
subsidiaries and affiliates, warrants and agrees to abide by all applicable laws
and regulations relating to the export and re-export of such goods and the direct
products thereof in relation to goods obtained by Buyer and its subsidiaries and
affiliates.
21. PERSONAL DATA AND PRIVACY POLICY.
The use of any
personal data collected or exchanged in connection with any orders for goods
shall be governed by Seller’s privacy policy. A copy of Seller’s privacy policy
may be obtained from its website.