Terms & Conditions
1. ACCEPTANCE AND CANCELLATION OF ORDERS
Each order for goods is subject to acceptance in writing by a duly authorized officer of Seller; any written acknowledgment of 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, reasonable cancellation or restocking charges, which shall include all expenses then incurred and commitments made by Seller, shall be paid by Buyer to Seller. Special orders for items not normally stocked or including specially ordered software are non-cancelable and non-returnable.
Every quotation for product and every order received for product is quoted or accepted under the condition that there will be no cancellations or reschedules accepted within 60 days before the scheduled shipping date.
By placing an order with Seller, the Buyer acknowledges that the goods it is receiving may contain software not manufactured by Seller that is embedded in or used in connection with the goods ordered. Buyer further acknowledges that it is bound by any and all restrictions placed on Seller by the manufacturer of such software with respect to the permitted usage and terms and conditions of the usage of such software. Upon request, Buyer will be provided with a list of all such restrictions, terms and conditions.
2. MINIMUM ORDER QUANTITY
Seller reserves the right to refuse any order that does not meet the total minimum of $250.00 per order. The minimum order amount does not include sales, use, excise or similar taxes. Individual orders, for less than the minimum order amount, may not be accumulated to reach the total minimum order dollar amount required. Any order received by fax or mail by Seller of less than $250.00, not including returns, repairs, will be referred to a local distributor for processing.
All prices quoted and goods shipped are FOB, Seller’s facility. Title to and risk of loss of all goods shall pass upon Seller’s delivery to carrier for shipment to Buyer unless otherwise agreed by Seller in writing. Buyer shall pay all freight, handling, delivery, and insurance charges for shipment of goods. Choice of carrier and shipping method and route shall be at the election of Seller unless specifically designated by Buyer. Seller shall not be liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of Seller, which causes shall include, without limitation, delays caused by the manufacturer of software embedded in or used in connection with a product sold hereunder, acts of God, acts or omissions of Buyer or civil or military authorities, fire, 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 from time to time, within the time for delivery provided in such order, unless Buyer and Seller agree at the time of the order to ship an order complete with no partial shipments.
(a) Unless otherwise specified by Seller in writing (refer to the payment terms on the face of [this agreement]), payment in full of the net amount owing, without offset or deduction, is due 30 days after the date of invoice. If payment is not received within such 30 day period, a late payment charge of 1.5% per month of the unpaid balance or the maximum amount allowed by law, whichever is less, shall be paid by Buyer.
(b) All checks are accepted subject to collection, and Buyer agrees to pay all costs of collection, including reasonable attorney’s fees. Any check received from Buyer may be applied by Seller against any obligation of Buyer to Seller under this or any other agreement, notwithstanding any statement appearing on or referring to such check. Acceptance of any partial payment shall not constitute a waiver of Seller’s right to payment in full of all amounts owing from Buyer to Seller or the waiver of any other breach of [this agreement].
(c) Buyer hereby grants Seller a security interest in the goods shipped, including all accessions to and replacements of such goods and the proceeds thereof, to secure the payment of the purchase price of such goods and all other amounts owing under this agreement, all as described and set forth on the face of [this agreement.] Buyer hereby authorizes Seller to execute and file one or more financing statements or other documents in all locations required to perfect Seller’s security interest in the goods and their proceeds. Buyer further agrees to cooperate fully with Seller in executing any documents, instruments, financing statements or amendments thereof as Seller may deem necessary or advisable to establish, maintain or continue the security interest created by [this agreement.]
5. INSPECTION AND ACCEPTANCE OF GOODS
Final inspection and acceptance of the goods shall be at Buyer’s facility. Acceptance by Buyer shall occur upon completion of test provided the goods are in accordance with their manufacturer’s specification. Buyer shall be responsible for conducting the final acceptance tests, if necessary, which tests hall be completed promptly and in no event later than 15 days after the delivery of the goods.
6. SELLER’S RIGHT TO INCREASE PRICES
Seller reserves the right to increase the selling price of any goods ordered by Buyer but not shipped from Seller’s place of business prior to an increase in Seller’s cost of such goods or software embedded in or used in connection with such goods by Seller’s supplier. The selling price quoted herein shall, upon an increase in price by Seller’s supplier, be increased by a percentage equal to the percentage of increase in Seller’s cost for the goods, and Buyer agrees to pay any price such increased price in according with the terms hereof.
Seller’s prices do not include sales, use, excise or similar taxes. Accordingly, Buyer shall, in addition to prices specified by Seller, pay any sales, use, excise or similar tax attributable to the goods covered hereby, or in lieu thereof, provide Seller with tax exemption certificates acceptable to the taxing authorities.
8. SELLER’S LIMITED WARRANTIES, REMEDIES AND POLICIES
(a) Seller provides a limited 1 year warranty for all its enclosure products commencing on the date of shipment of the goods FOB Chatsworth, California. Seller warrants, that at the time of delivery, the goods shipped under this agreement are in accordance with Seller’s published specifications or are in accordance with “agreed to” customers’ specifications of the product.
(b) The warranty delivered to Seller by the manufacturer of components and/or software embedded in or used in connection with Seller’s manufactured products shall be assigned to the Buyer, to the extent such assignment is permitted by the terms thereof, but will in no event exceed the warranty period hereof. The terms of the warranty from the manufacturer of such components or software shall be the sole warranty on such items. Seller specifically disclaims any warranty with respect to software embedded in or utilized in relation to any product purchased from Seller. Any such software is provided “as is” without any warranty of any kind from Seller. Seller expressly disclaims all warranties regarding such software, whether express, implied, or statutory, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, noninfringement of third party rights, based on course of conduct or trade custom or usage. Seller specifically does not warrant that the products and/or the software embedded within or used in relation to the products will be bug or error free.
(c) No warranty from Seller of any kind shall apply to any goods which have been altered or repaired, except by Seller or the manufacturer, or which have been subjected to misuse, negligence or accident. Such warranties are expressly in lieu of any other, and Seller makes no other warranty, expressed, implied or statutory with respect to the goods.
(d) SELLER DISCLAIMS ANY WARRANTY WITH RESPECT TO THE MERCHANTABILITY OF SUCH GOODS OR THE FITNESS OF SUCH GOODS FOR BUYER’S PURPOSE OR USE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR BASED ON COURSE OF CONDUCT OR TRADE CUSTOM USAGE. SELLER NEITHER ASSUMES NOR AUTHORIZES BUYER OR ANY OTHER PERSON TO ASSUME ON BEHALF OF SELLER ANY OTHER LIABILITIES IN CONNECTION WITH THE SALE OF GOODS.
(e) 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 accordance with their manufacturer’s specifications, but only if: (i) Buyer obtains a “return material authorization” number from Seller and has such number displayed in plain view on the shipping documents and (ii) Buyer returns such goods (prepaid) within 30 days from day of delivery, in original package and in good condition, without their serial number or any part thereof altered, defaced or removed, to Seller’s facility, 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 their manufacturer’s specification, and Seller shall be entitled to examine such goods at Buyer’s facilities prior to their return. Final inspection and determination whether goods are in accordance with their manufacturer’s specifications shall be made at Seller’s facility, or may be based upon the manufacturer’s actual test report. Seller’s sole liability shall be as provided herein, which shall be the sole and exclusive remedy of Buyer.
(f) SELLER SHALL NOT BE LIABLE FOR ANY DAMAGES DUE TO DELAY IN DELIVERIES, SERVICE, USE OF EQUIPMENT OR OTHER PERFORMANCE AS SPECIFIED IN THIS AGREEMENT. SELLER SHALL IN NO EVENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, LIABILITY IN TORT (WHETHER STRICT LIABILITY OR NEGLIGENCE) OR, WITHOUT LIMITATION OTHERWISE, BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION BUSINESS LOSSES, PERSONAL PROPERTY DAMAGE, PERSONAL INJURY AND THIRD PARTY LIABILITIES ALL OF WHICH ARE HEREBY EXPRESSLY EXCLUDED.
(g) TO THE MAXIMUM EXTENT PERMITTED BY LAW, SELLER’S SOLE LIABILITY FOR DEFECTIVE PRODUCTS IS EXPRESSLY LIMITED TO THE REMEDIES OF REPAIR OR REPLACEMENT OF SUCH DEFECTIVE PRODUCTS AND SHALL IN NO EVENT EXCEED THE AMOUNTS RECEIVED BY SELLER FOR SUCH PRODUCT.
(h) THE FOREGOING PROVISIONS SHALL NOT EXTEND THE ORIGINAL WARRANTY PERIOD OF ANY GOODS WHICH HAVE EITHER BEEN REPAIRED OR REPLACED BY SELLER OR THE MANUFACTURER. ALL WARRANTIES FROM SELLER EXTEND ONLY TO THE INITIAL PURCHASE OF GOODS FROM SELLER.
9. PATENTS/COPYRIGHT/COMPLIANCE WITH LAW
(a) Seller shall have no liability of any kind with respect to any actual or alleged infringement of any United States or foreign patent, copyright, trademark or similar rights. Buyer shall have no rights of any nature whatsoever in or to the source or object code embedded in or used in relation to any products sold by JMR.
(b) Buyer agrees that it will not export or re-export any of the products sold by or the Confidential Information of Seller to any country or territory that is prohibited from receiving such materials under any applicable laws of the United States, including without limitation the United States export laws and regulations. With respect to Buyer’s employees to whom it is permitted to disclose Confidential Information, Buyer will disclose such Confidential Information only to United States citizens or persons lawfully admitted for permanent residence such that such disclosure will not constitute an export. Buyer further agrees that the products purchased hereunder will be used in accordance with all applicable laws and regulations and in compliance with any regulatory or governmental agency that has jurisdiction over such matters.
Buyer shall be solely responsible for the installation and operation of the goods covered hereby, including without limitation the obtaining of all permits, licenses or certificates required for and the installation or use of such goods.
11. CONFIDENTIAL INFORMATION
(a) Buyer and Seller agree that through their business dealings with one another, each party may disclose to the other Confidential Information of such disclosing party. Each party shall not in any way disclose, copy, modify, distribute, or otherwise transfer the Confidential Information of the other party, or any portion thereof, to any other person or entity at any time. Each party has the right to disclose Confidential Information of the other party to its employees who have a specific need to know in order to perform that party’s obligations hereunder, but each party shall be responsible for all of its employees’ actions. Each party shall use the other party’s Confidential Information only to properly fulfill its obligations hereunder and not for any other purpose. Upon request, each party shall immediately return to the other party the originals and all copies of all Confidential Information of the other party.
(b) For purposes hereof, the term Confidential Information shall mean any confidential information of a party relating to any designs, know-how, inventions, technical data, ideas, uses, processes, methods, data, source code, object code, mask works, formulae, research and development activities, work in process, or any scientific, engineering, manufacturing, marketing, business plan, financial or personnel matter relating to the disclosing party, its present or future products, sales, suppliers, customers, employees, investors or business, whether in oral, written, graphic or electronic form whether or not marked confidential or acknowledged as being confidential prior to disclosure). Confidential Information shall also include any other information in oral, written, graphic or electronic form which, given the circumstances surrounding such disclosure, would be considered confidential.
In the event of any default, Buyer shall pay all costs incurred by Seller in collecting any amounts due under this agreement, including reasonable attorneys fees and costs. The waiver by Seller of any breach hereof or default in any payment shall not be deemed to constitute a waiver of any succeeding breach or default. Seller shall have all remedies provided under the Uniform Commercial Code, which shall be cumulative with one another and with any other remedies, which Seller may have at law, in equity, under any agreement of any type or, without limitation otherwise. The exercise or failure to exercise any remedy shall not preclude the exercise of that remedy at another time or of any other remedy at any dispute between Buyer and Seller and any and all litigation shall be instituted and litigated in the courts of Los Angeles County, State of California. Buyer waives any right to a change of venue or change of jurisdiction and hereby submits to and acknowledges the jurisdiction of any such court, state or federal as provided herein.
NO ACTION, REGARDLESS OF FORM, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THE GOODS FURNISHED OR SERVICES RENDERED BY SELLER, MAY BE BROUGHT BY BUYER MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
13. WAIVER OF JURY TRIAL
Buyer and Seller, hereby waive their respective rights to a jury trial of any claim or cause of action based upon or arising out of [this agreement.] Buyer and Seller acknowledge that this waiver is a material inducement to enter into a business relationship, that each has already relied on the waiver in entering into [this agreement] and that each will continue to rely on the waiver in their related future dealings. Buyer and Seller further warrant and represent that each has reviewed this waiver with its legal counsel, and that each knowingly and voluntarily waives its jury trial rights following consultation with legal counsel.
14. INTEGRATION AND ASSIGNMENT
This instrument contains the entire agreement between the parties. with respect to the sale of the goods, and any representation, promise or condition not specifically incorporated herein in writing shall not be binding on either party. Any modification of the terms hereof shall be effective only when embodied in a written agreement signed by the party to be changed. Any assignment of this agreement or any rights hereunder by Buyer shall be void without Seller’s written consent.
15. BUYER’S TERMS AND CONDITIONS
Seller desires to provide its customers with prompt and efficient service. However, to negotiate individually the terms and conditions of each sales contract would substantially impair Seller’s ability to provide such service. Accordingly, goods furnished and services rendered by Seller are sold only on the terms and conditions stated herein. Notwithstanding any terms and conditions on Buyer’s order, Seller’s performance of any contract is expressly made conditional on Buyer’s agreement to Seller’s Terms and Conditions of Sale, unless otherwise specifically agreed to in writing by Seller. In the absence of such agreement, commencement of performance and/or delivery shall be for Buyer’s convenience only and shall not be deemed or construed to be acceptance of Buyer’s terms and conditions, or any of them. If a contract is not earlier formed by mutual agreement in writing, acceptance of any goods or services shall be deemed acceptance of the terms and conditions stated herein.
This agreement and performance by the parties hereunder shall be construed in accordance with the laws of the State of California. All agreements, covenants, conditions and provisions contained herein shall apply to and bind the assignees and successors in interest of Buyer. If any provision or portion of this agreement is held to be invalid, illegal, unconscionable or unenforceable, the other provisions and portions hereof shall not be affected. The several captions used herein are for the convenience of the parties only and shall not affect the construction or the interpretation hereof
17. CERTIFICATE OF CONFORMANCE
(a) These materials and/or parts were produced in conformance with all contractually applicable Government and/or Buyer specifications as referenced in, or furnished with, the purchase order as stated on face of invoice. (b) The materials and/or parts furnished under the purchase order as stated on face of invoice and sales order packing slip were produced either from materials furnished by Buyer’s corporation for the production of such parts or from materials for which the subcontractor has available for examination chemical and/or physical test reports or other evidence of conformance to applicable specifications.