Terms and Conditions of Sale
THESE TERMS AND CONDITIONS EXCLUSIVELY GOVERN ALL SALES OF PRODUCTS (“PRODUCTS”) AND THE PROVISION OF SERVICES (“SERVICES”) BY CTRENDS, INC. (“SELLER”).
BY ACCEPTING DELIVERY OF THE PRODUCTS OR THE PERFORMANCE OF SERVICES DESCRIBED IN THE APPLICABLE SALE DOCUMENT, BUYER SHALL BE DEEMED TO HAVE ACCEPTED THESE TERMS AND CONDITIONS WITHOUT MODIFICATION BY ANY PRIOR OR LATER COMMUNICATION FROM BUYER. SELLER’S ACKNOWLEDGMENT OF A PURCHASE ORDER OR SELLER’S FAILURE TO OBJECT TO ANY CONFLICTING, CONTRARY OR ADDITIONAL TERMS AND CONDITIONS IN A PURCHASE ORDER SHALL NOT BE DEEMED AN ACCEPTANCE OF THOSE TERMS AND CONDITIONS OR A WAIVER OF OBJECTION TO THEM. SELLER DOES NOT AGREE TO ANY MODIFICATION OR WAIVER OF ANY TERM OR CONDITION CONTAINED HEREIN, UNLESS THAT TERM OR CONDITION IS EXPRESSLY REFERENCED, AND THE MODIFICATION OR WAIVER IS EXPRESSLY AGREED-TO IN A WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER. THESE TERMS AND CONDITIONS TAKE PRECEDENCE OVER ANY CONFLICTING, CONTRARY OR ADDITIONAL TERMS AND CONDITIONS CONTAINED IN ANY PURCHASE ORDER, DOCUMENT OR OTHER COMMUNICATION FROM BUYER. OR BUYER’S REPRESENTATIVE.
THIS ORDER, EXCEPT AS OTHERWISE PROVIDED HEREIN, IS NON-CANCELABLE AND NON-RETURNABLE. ALL SHIPPING SCHEDULES, AFTER AGREED TO IN WRITING BY THE PARTIES, SHALL BE FINAL AND CANNOT BE MODIFIED UNLESS AGREED TO IN WRITING BY BOTH THE SELLER AND THE BUYER.
PRICES, TERMS OF PAYMENT
PRICES; TERMS OF PAYMENT: Prices and payment terms for Products or Services are as set forth in the Sale Document. Prices are exclusive of, and Buyer shall pay, all taxes, duty, freight charges and all other similar fees, such as forwarding agent’s and broker’s fees, consular fees, document fees and import duties. Buyer agrees to pay these taxes unless Buyer has provided Seller with an exemption resale certificate in the appropriate form for the jurisdiction of Buyer’s place of business and any jurisdiction to which Products are to be directly shipped or where Services are to be performed hereunder, or unless the sale is otherwise exempt from these taxes. Buyer agrees to indemnify and hold Seller harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. All payments shall be made by cash on delivery, company check, credit card, or by wire transfer to an account which will be designated by Seller in accordance with the terms specified in the Sale Document, without abatement, set-off, or deduction of any amount whatsoever and despite any defense or counterclaim Buyer may have against Seller. A late charge of 1.5% per month (or the maximum rate allowed by law if less) will be assessed on all outstanding amounts not paid within the terms specified in the Sale Document. Buyer shall be liable for costs of collection, including reasonable attorneys’ fees and court costs, in any action to collect past due amounts.
Seller reserves the right to establish and/or change credit and payment terms extended to Buyer when, in Seller’s sole opinion, Buyer’s financial condition or previous payment record warrants such action. Further, on delinquent accounts, Seller shall not be obligated to continue performance under any agreement with Buyer. If Seller believes in good faith that Buyer’s ability to make payments may be impaired or if Buyer shall fail to pay any invoice when due, Seller may suspend delivery of any order or any remaining balance thereof until such payment is made or cancel any order or any remaining balance thereof, and Buyer shall remain liable to pay for any Products already shipped.
DELIVERY; RISK OF LOSS; TITLE; SECURITY INTEREST
All shipments of Products shall be Ex Works (as defined in Incoterms 2000) Seller’s facility in Foothill Ranch, California, unless otherwise specified in writing by Seller. Title and risk of loss and damage shall pass to Buyer upon delivery of Products to a carrier at Seller’s facility. Buyer agrees, however, that Seller shall retain a purchase money security interest in all Products and to any proceeds thereof, until the purchase price and any other charges due to Seller shall have been paid in full. Buyer agrees to execute any financing statement or other documents as Seller may request in order to perfect Seller’s security interest. Upon any default by Buyer hereunder, Seller shall have all rights and remedies of a secured party under the California Commercial Code, which rights and remedies shall be cumulative and not exclusive. Buyer’s failure to pay all amounts hereunder in full when and as due shall constitute a default hereof and shall give Seller all rights of a secured party, including the right to repossess and remove all or any part of the Collateral from Buyer. Any repossession or removal shall be without prejudice to any other remedy of Seller hereunder, at law or in equity.
Delivery dates quoted by Seller are estimates only and are subject to various delays, whether in the control or beyond the control of Seller. Buyer acknowledges that any delay in delivery shall not give rise to any liability on the part of Seller whatsoever, including for loss of use or INDIRECT OR CONSEQUENTIAL DAMAGES. Transportation and insurance shall be at Buyer’s sole risk and expense, and any claim for loss or damage in transit shall be against the carrier only. In the absence of specific shipping instructions from Buyer and agreed to by Seller, Seller will select the carrier and method of shipment.
ACCEPTANCE AND RETURNS
All products shall be deemed and presumed to be correct and acceptable to Buyer and in full compliance with the quantities and specifications ordered, with all warranties made herein unless, within 30 days from the date of delivery, Buyer shall have notified Seller in writing to the contrary. Any claims for shortages or in transit damage must be made to Seller in writing within 10 days from the date of delivery. All claims and returns must, moreover, be submitted to Seller’s facility referencing the appropriate invoice. All returns must be authorized in advance by Seller or on Seller’s Standard return authorization form.” THERE SHALL BE NO OVER OR UNDER SHIPMENTS MADE, UNLESS THE PARTIES EXPRESSLY AGREE IN WRITING TO THE CONTRARY. AN OVER OR UNDER SHIPMENT SHALL BE CONSIDERED A SHIPMENT OF A QUANTITY OF MORE OR LESS THAN 5% OF THE ORDERED QUANTITY. IT IS AGREED THAT THE SELLER IS NOT IN BREACH IF ANY QUANTITY SHIPPED AND DELIVERED VARYS LESS THAN 5% FROM THE QUANTITY ORDERED.
- Seller warrants to Buyer that for a period of 30 days following the delivery of product to Buyer, the Products will be free from defects in material and workmanship and will function in substantial compliance with the manufacturer’s written specifications thereof.
- Buyer’s exclusive remedy shall, in any case, be limited, at the Seller’s election, to: A) Repair or replacement of the defective products; B) Refund of the purchase price thereof of C) Crediting of the same against future purchases by Buyer. All defective product returns must be accompanied with a third-party’s failure analysis report unless previously agreed to in writing by Seller. THE FOREGOING WARRANTY IS THE ONLY WARRANTY MADE BY SELLER WITH RESPECT TO THE PRODUCTS. THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND BY THE SELLER, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONDITION OR PERFORMANCE OF THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, THEIR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY
Buyer agrees that, regardless of the claim or other form in which any legal or equitable action may be brought by Buyer against Seller and/or its affiliates and their respective officers, directors, representatives, agents, subcontractors, and employees (collectively, the “Seller Parties”), none of the Seller Parties shall be liable for any indirect, special, incidental, consequential, exemplary or punitive damages, including, without limitation, loss of profits, revenue, promotional expenses, injury to reputation, or loss of customers. Buyer’s recovery from the Seller Parties or any of them for any claim in any way arising from or related to the Products, Services or this Agreement shall not in the aggregate exceed the amount actually paid to Seller by Buyer for the Products or Services irrespective of the nature of the claim, whether in contract, tort, warranty, strict liability, product liability or otherwise and whether arising in whole or in part from the negligence of any of the Seller Parties.
Seller shall further not be liable for any failure or delay in the performance of order or contracts or in the delivery or shipment of Products or for any damages suffered by Buyer by reason of such failure or delay, when such failure or delay is, directly or indirectly, caused by, or in any manner arises from fires, floods, accidents, riots, acts of God, war, governmental interference of embargoes, strikes, labor difficulties, shortage of labor, fuel, power, material or supplies, transportation delays, delays in deliveries by Seller’s vendors or any other cause or causes (whether or not similar in nature to any of those herein specified) beyond Seller’s control.
LEGAL COMPLIANCE; EXPORT CONTROL
Buyer shall comply with, and be responsible for obtaining all licenses, permits and other approvals required under, all applicable foreign, national, state and local laws and regulations relating to the purchase or use of the Products or Services, including laws regulating imports and exports and transactions with non-U.S. persons. 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 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, and any party debarred or sanctioned for proliferation or terrorism reasons by the U.S. State Department.
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 and the export control regulations of Singapore, the European Union, and the UK as amended. Buyer agrees to comply strictly with all U.S. and other country’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, and any party debarred or sanctioned for proliferation or terrorism reasons by the U.S. State Department. 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.
PATENTS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY
Seller makes no representation concerning patents, trademarks, trade names or service marks (collectively “Patents”) of any of its Products. If any Product includes software or other intellectual property, such software or other intellectual property is provided by Seller to Buyer subject to the copyright and user license, if any, for such Products, the terms and conditions of which are set forth in the license agreement accompanying such Product. Nothing herein shall be construed to grant any rights or license to use any software or other intellectual property in any manner or for any purpose not expressly permitted by such license agreement. Buyer acknowledges and understands that Seller is not the manufacturer of any Products ordered or to be supplied to Buyer and is not liable to Buyer or any third party for any infringement claim or any other intellectual property or trade secret issue, right or claim that may arise in relation to any Product.
VENUE, JURISDICTION, ATTORNEY’S FEES, MEDIATION
Buyer shall be responsible for all reasonable costs and expenses incurred by Seller in collection of any sums owing by Buyer or in Seller’s enforcement of any provision of this Agreement and Seller shall not be obligated to make any further deliveries to Buyer. Such reasonable costs and expenses shall include, but not be limited to, reasonable attorney’s fees.
It is agreed that this Agreement has been made and entered into in Orange County, California and enforcement of this Agreement shall be governed by the laws of the State of California. By acceptance of the Products, Buyer irrevocably consents to the personal jurisdiction of California, and agrees that Orange County is the proper venue for any litigation disputes under this Agreement.
Before any court action or any proceeding is filed by either party involved in this transaction, the parties will participate in a mandatory mediation, which will last a minimum of four hours.
If any disputes arise between Seller and Buyer and a lawsuit is ultimately filed, the prevailing party shall be entitled to recover their reasonable attorney’s fees and costs, in addition to any other relief afforded.
This Sales Order Confirmation and the Terms and Conditions set forth herein constitute the entire Agreement between Seller and Buyer. If the terms and conditions of this Agreement differ in any way from the terms and conditions of Buyer’s purchase order or any other document submitted by Buyer, this Agreement shall govern and shall not be construed as a “counteroffer” of any kind. Buyer’s acceptance of the Products shall be conclusive presumption that Buyer has accepted all terms and conditions of this Agreement. No addition to or modification of the terms of this Agreement will be effective unless made in writing and signed by both Seller and Buyer.
If any inconsistencies exist between this Sales Order and any Purchase Order the Buyer may have issued, the terms of this Sales Order shall govern.