These terms and conditions govern the sale of Products ("Products") by American Pioneer Electronics Inc ("Seller") and its affiliates and subsidiaries as well as by third party vendors and/or service providers of Seller. These terms and conditions ("Agreement") take precedence over Buyer’s supplemental or conflicting terms and conditions to which notice of objection is hereby given.
All orders placed by Buyer are subject to acceptance by Seller. Orders may not be cancelled or rescheduled without Seller’s written consent. All orders must include delivery dates, quantities, approved vendors and complete description of Products being purchased. All orders including, but not limited to, Electronic Purchase orders, for products identified by Seller as non -Standard or "NCNR "are non-cancellable, non-schedulable, non-returnable. Seller reserves the right to allocate the sale of Products among its customers.
The placing of an order by a Buyer, or acceptance by a Buyer of a quotation, shall be deemed to include acceptance of these terms and conditions. Unless expressly accepted in writing by Seller, no qualification or variation of these terms and conditions by a Buyer, whether verbal or contained in any written or printed document of the Buyer, shall be binding on Seller.
This document and not any purchase order or other Buyer document (which, if construed to be an offer is hereby rejected), will be deemed an offer or counter offer and is a rejection of any other terms or conditions. Buyer, by accepting any products, making any payments or ordering any products having previously received these terms and conditions, will be deemed to have assented to these terms and conditions, notwithstanding any terms contained in any prior or later communication from Buyer and whether or not Seller will specifically or expressly object to any of Buyer’s terms. Seller’s failure to object to any document, communication or act of Buyer will not be deemed a waiver of any of these terms and conditions. Any addition or change to these terms and conditions must be specifically agreed to in writing by a duly authorized officer of Seller, before becoming binding on Seller .
Unless previously withdrawn, quotations by Seller are valid for only 21 days after the date thereof. No binding contract shall be created by the acceptance by the Buyer of a quotation or offer by Seller, until notice of the acceptance of the order has been given to the Buyer in writing by Seller.
Unless otherwise specified by Seller in writing, all deliveries by Seller are ‘EXW’ Seller’s warehouse (INCO TERMS 2010)
(a) Any time specified for delivery of goods is given or accepted by Seller in good faith and intended as a reasonable estimate only, and time shall not be of the essence of the contract. Seller shall not incur any liability whatsoever by reason of its failure for any reason to deliver goods at the time specified, nor shall such failure cancel the contract or give rise to any proceedings for damages or otherwise. Seller reserves the right to make partial deliveries and Buyer will accept delivery and pay for the products delivered. A delayed delivery of any part of an order does not entitle the Buyer to cancel other deliveries.In the absence of prior agreement as to shipping, Seller may select a carrier. Seller’s responsibility for any loss or damage ends, and title passes, when products are delivered to the carrier, to Buyer, or to Buyer’s agent (including, without limitation, any test house or value added service provider), whichever occurs first. Customer will pay for storage charges if Seller holds products at Buyer’s request pending instructions or rescheduled delivery.
4. INSPECTION AND ACCEPTANCE OF GOODS:
The Buyer shall inspect the goods immediately on arrival and shall within 7 days after arrival notify Seller of any non-conformity or other discrepancy under the contract; absent such notice (and to the extent the goods are not nonconforming if such notice is given as to part of the goods delivered) the Buyer shall be bound to accept and pay for the goods. Acceptance of the goods shall be final and conclusive.
IPrices are subject to change at any time. Prices are for products only and do not include taxes , Shipping charges , Freight , Duties and other charges such as expenses for special packaging , permits , certificates , customs declarations etc. . Buyer is responsible for any additional fees.
Except as otherwise set forth by Seller, terms of payment are advance payment and full payment is due promptly upon placing an order on Seller. For all other orders, upon approval of credit, corporate standard terms of payment are Net Thirty (30) days from the date of invoice unless otherwise specified in writing by Seller. In addition, Buyer will be deemed to have accepted an invoice within 7 (Seven) days of delivery of product shortages, damages or defect and no further objections to the invoice will be permitted or accepted . Seller may invoice each shipment separately and each shipment shall be considered a separate and individual contract. Buyer agrees to pay such invoice pursuant to its terms without the benefit of setoff or deduction. Prices are conditioned upon timely payment and any past due balance will accrue interest at the monthly rate of one and one-half percent.
At any time, Seller may change the terms of Buyer credit, require financial data from Buyer for verification of Buyer’s creditworthiness, require a bank guarantee or other security, or suspend any outstanding orders of Buyer. If Buyer defaults on any payment, Seller may reschedule or cancel any outstanding delivery and declare all outstanding invoices due and payable immediately.
Seller retains a purchase money security interest in the products delivered to Buyer, and in the proceeds of any resale of such products, until the purchase price and any other charges due to Seller have been paid in full .Upon any breach by Buyer of these terms and conditions, Seller will have all rights and remedies of a secured party under applicable law, which rights and remedies will be cumulative and not exclusive. Buyer is responsible for all costs and expenses incurred by Seller in collecting any sums owing by Buyer (which may include, but are not limited to, collection agency and reasonable attorneys' fees). Seller shall have the right to offset any sum owed by Seller or its subsidiary to Buyer against any sum owed by Buyer to Seller or any of its subsidiaries. All transactions are governed by the laws of the State of New Jersey. The parties waive any right to trial by jury.
7. LIMITED WARRANTY AND LIMITATION OF LIABILITY:
(a)Seller will transfer to Buyer any transferable warranties or indemnities that the manufacturer of the Product or the third party vendor/service provider provides to Seller. SELLER SHALL HAVE NO LIABILITY TOWARDS BUYER BEYOND THE EXPRESS TERMS OF SUCH MANUFACTURER PRODUCT WARRANTIES. SELLER ASSUMES NO LIABILITY FOR THE QUALITY OF THE WORK PERFORMED OR SERVICES RENDERED BY THIRD PARTY VENDORS/SERVICE PROVIDERS. IT IS BUYER'S OBLIGATION TO REQUEST COPIES OF ANY APPLICABLE MANUFACTURER WARRANTIES AND BUYER SHALL BE DEEMED TO HAVE ACCEPTED SUCH WARRANTIES UPON ACCEPTANCE OF THE PRODUCTS AND/OR SERVICES.
(b) Seller’s exclusive obligations with respect to a non-conforming Product or Service shall be, at Seller’s option, to repair or replace the Product, if it is determined to be defective, or to re-perform the Service, or to refund to Buyer the purchase price paid for the Product or Service. Notwithstanding anything herein to the contrary, the liability of Seller under this Section 7 (b) for all claims shall not exceed the sum of Buyer’s payments for the Products or Services which are the subject of the dispute and the foregoing is Buyer’s sole and exclusive remedy for all claims under this Section 7(b). THE FOREGOING WARRANTIES ARE THE SOLE WARRANTIES, EXPRESS OR IMPLIED, GIVEN BY SELLER IN CONNECTION WITH THE PRODUCTS AND SERVICES, AND SELLER DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS.
(c) Replacement Products shall be warranted as set forth in Section 7(a) above. Any Products repaired or serviced by Seller shall be warranted as provided in this Section 7 for the remainder of the manufacturer’s warranty period.
(d) No warranty shall apply to any Product that has been subject to misuse, improper testing, assembly, mishandling, or which has been operated contrary to current instructions relating to installation, maintenance or operation, or contrary to industry standards.
(e) Seller disclaims, and shall have no liability for any trademark, trade dress, trade secret, copyright, design or patent infringement, or any other intellectual property right, which may occur, as a result of the sale of Products to Buyer. The only remedy or recourse for trademark, trade dress, trade secret, copyright, design or patent infringement, or any other intellectual property right, shall be against the manufacturer of the Products which is explicitly subject to the limited warranty of the manufacturer of the Product. There shall be no remedy or recourse against Seller or the manufacturer to the extent the infringement arises from or is otherwise based upon (i) the manufacturer's compliance with the particular requirements of Buyer that differ from the manufacturer's standard specifications for the Product; (ii) modifications or alterations of the product other than by the manufacturer; or (iii) a combination of the Product with other items not furnished or manufactured by the manufacturer.
(f) BUYER SHALL NOT IN ANY EVENT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION COSTS, REMOVAL AND/OR REINSTALLATION COSTS, REPROCUREMENT COSTS, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO REPUTATION OR LOSS OF CUSTOMERS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER'S RECOVERY FROM SELLER FOR ANY CLAIM SHALL NOT EXCEED BUYER'S PURCHASE PRICE FOR THE PRODUCT GIVING RISE TO SUCH CLAIM IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. SELLER SHALL NOT BE LIABLE FOR AND BUYER SHALL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ANY CLAIMS BASED ON SELLER'S COMPLIANCE WITH BUYER'S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS, OR MODIFICATION OF ANY PRODUCTS BY PARTIES OTHER THAN SELLER, OR USE IN COMBINATION WITH OTHER PRODUCTS. IF, FOR ANY REASON, THE FOREGOING LIMITATIONS ARE FOUND BY AN ARBITRATION PANEL OR COURT OF COMPETENT JURISDICTION TO BE INVALID OR INAPPLICABLE UNDER ANY APPLICABLE STATE OR PROVINCIAL LAW, BUYER AGREES THAT SELLER’S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION OF ANY KIND OR NATURE SHALL BE LIMITED TO ACTUAL DAMAGES WITHOUT REGARD TO ANY PUNITIVE OR EXEMPLARY DAMAGES PROVIDED BY ANY SUCH APPLICABLE LAW.
(g) Buyer acknowledges that this Agreement was entered into at arm’s length and that it was not fraudulently induced to enter into this Agreement, in whole or any part, and Buyer explicitly disclaims and waives any claim with respect thereto.
8. EXPORT CONTROLS AND USE OF PRODUCTS:
Buyer certifies that it will be the recipient of Products to be delivered by Seller. Buyer acknowledges that the Products are subject to the export and/or import control laws and regulations of various countries including the Export Administration Laws and Regulations of the United States. Buyer agrees to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required and acknowledges that it shall not directly or indirectly export any Products to any country to which such export or transmission is restricted or prohibited. Products sold by Seller cannot be transferred, sold or re-exported to any party on the Entity List or Restricted Person List of the U.S. Department of Commerce, Bureau of Industry and Security (BIS), any party designated by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), and any party debarred or sanctioned for proliferation or terrorism reasons by the U.S. State Department. Buyer shall comply with all applicable U.S. economic sanctions and export control laws and regulations, including without limitation, the regulations administered by OFAC, the Export Administration Regulations administered by BIS, and the International Traffic in Arms Regulations administered by DDTC. Seller may terminate this Order and discontinue any ongoing supply to or business with Buyer immediately, without notice and without liability, upon Seller becoming aware that Buyer is named on any restricted party list. Products sold by Seller are not designed, intended or authorized for use in life support, life sustaining, nuclear, or other applications in which the failure of such Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. . If Buyer uses or sells the Products 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 Products 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 Products 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.
9. PRODUCT RETURN:
Buyer may return Products to Seller only with a return material authorization ("RMA") number issued by Seller. Buyer must notify Seller in writing of any damage to the outer packaging or the Products, shortage, or other discrepancy ("Visual Defect") within 7 days after receipt of the shipment; otherwise, Buyer is deemed to have accepted the Products and may not revoke acceptance. RMAs will be issued only for Visual Defects created solely by Seller or the original manufacturer, and only if Buyer satisfies the notice requirement. RMAs will not be granted for damage, shortage, or other discrepancy created by Buyer, the carrier or freight provider, or any other third party. Product return pursuant to a warranty requires written notice from Buyer to Seller within the warranty period detailing the Product defect. Buyer must return the Products to Seller freight prepaid in original manufacturer's shipping cartons or equivalent, along with acceptable proof of purchase, within the warranty period and as specified in the RMA. At Seller’s discretion, Seller will return all Products not eligible for return to Customer, freight collect, or hold Product for Buyer’s account at Buyer’s expense.
“Confidential Information” means any of Seller’s business information, specifications and all related writings, drawings, designs and similar works or any other information which is disclosed by Seller and labeled or marked as confidential, proprietary or its equivalent, or oral or visual information that is designated confidential, proprietary or its equivalent at the time of its disclosure. All Confidential Information shall be the exclusive property of Seller, and Seller retains all its right, title and interest. Buyer agrees to use Confidential Information for the exclusive purpose of performance under the Purchase Order and not to disclose or provide any Confidential Information to any third party and to take all necessary measures to prevent any such disclosure by its employees, agents, contractors or consultants. Upon request of Seller or completion of the Order, Buyer shall return all Confidential Information to Seller and provide certification of such return.
11. FORCE MAJEURE:
Force Majeure: Seller shall not be liable for its inability to secure sufficient quantities of any Product or failure to deliver due to causes beyond Seller’s reasonable control including, but not limited to, acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of Product, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, acts of terrorism, delays in transportation or inability to obtain labor, materials or Products through its regular sources, which shall be considered as an event of force majeure excusing Seller from performance and barring remedies for non-performance. In an event of force majeure condition, the Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Seller to any liability or penalty. Seller may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to Buyer.
As used herein, terms appearing in the singular shall include the plural and terms appearing in the plural shall include the singular. No rights, duties, agreements or obligations hereunder may be assigned or transferred by Buyer, by operation of law, merger or otherwise, without the prior written consent of Seller. Any attempted or purported assignment shall be void. Seller's obligations under these terms and conditions may be performed by divisions, subsidiaries or affiliates of Seller. The obligations, rights, terms and conditions hereof shall be binding on the parties hereto and their respective successors and assigns. The waiver of any provision hereof or of any breach or default hereunder shall not be deemed a waiver of any other provision hereof or breach or default hereunder. Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof in that jurisdiction or affecting the validity or enforceability of such provision in any other jurisdiction.