TERMS & CONDITIONS OF SALE
For the purposes of these Terms and Conditions of Sale, the term “contract” shall mean the agreement between Supplier and Buyer arising as a result of Buyer’s submission of an order for Supplier’s products. Such contract shall be deemed to incorporate and be governed by these Terms and Conditions.
THESE TERMS AND CONDITIONS SHALL TAKE PRECEDENCE OVER ANY TERMS AND CONDITIONS WHICH APPEAR IN BUYER’S PURCHASE ORDER OR IN ANY DOCUMENTS
INCORPORATED BY REFERENCE IN BUYER'S PURCHASE ORDER.
No term or condition of Buyer’s purchase order additional to or different from these Terms and Conditions shall ever be allowed to become part of this contract unless explicitly agreed to in writing by Supplier. Retention by Buyer of any products delivered by Supplier, or payment by Buyer of any invoice rendered hereunder shall be conclusively deemed as understanding and acceptance of these Terms and Conditions. Supplier’s failure to object to any provision contained in any communication from Buyer shall not be construed as a waiver of these Terms and Conditions nor as an acceptance of any such provision.
1. Quotations: Prices, specifications and dates for delivery referenced in Supplier’s quotations are for information purposes only and shall not be binding on Supplier until all technical requirements have been agreed and Supplier has accepted Buyer’s purchase order. Written Quotations are valid for 30 days only and subsequently terminate if not accepted by Buyer within 30 days.
2. Orders: By submitting a Purchase Order to Supplier, Buyer agrees to be subject to these Terms and Conditions of Sale in their entirety. All purchase orders must be bona fide commitments showing definite prices and quantities and mutually agreed shipping dates. No order, whether or not submitted in response to a quotation by Supplier, shall be binding upon Supplier until accepted in writing by Supplier. Buyer understands that All Sales are Final. There are NO REFUNDS ON ANY TELEMETRY EQUIPMENT SOLD BY SUPPLIER. By submitting a Purchase Order for telemetry related equipment Buyer warrants that Buyer has read, understands, and agrees to the Terms and Conditions of Sale as set forth in this document.
3. Shipment and Delivery: All products will be shipped F.O.B. Supplier’s dock. All shipping and handling costs must be paid by the Buyer. In the absence of specific instructions, Supplier will select the carrier, but shall not be deemed thereby to assume any liability in connection with the shipment nor shall the carrier be construed to be the agent of Supplier. Buyer must provide its own insurance. Title and risk of loss or damage to all products sold hereunder shall pass from Supplier to Buyer upon delivery by Supplier to the possession of the carrier. Any claims for loss, damage or miss-delivery thereafter shall be filed with the carrier. Supplier will assume no responsibility for any damage to equipment once equipment has been delivered to a carrier. Acceptance of the equipment shall constitute acknowledgment of full performance by Supplier of all obligations under the contract except as stated at Section 6 (Warranties).
4. Terms of Payment: Domestic Orders received via purchase order, phone, or email may be paid within 30 days of Invoice Date. All International orders will require an export license due to ITAR restrictions, no exceptions. International customers will allow a minimum of 90 days for export license processing by the United States Department of State offices. For International Orders, full and complete payment for equipment, shipping, handling, and export document processing fees must be received and processed prior to shipment of equipment.
5. Contingencies: Supplier shall not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the control of Supplier, including, by way of illustration but not limitation, war (whether an actual declaration thereof is made or not), sabotage, insurrection, riot or other act of civil disobedience, act of a public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof, judicial action, labor dispute, accident, fire, explosion, floods, storm or other act of God, shortage of labor, fuel, raw material or machinery or technical failure where Supplier has exercised ordinary care in the prevention thereof. If any such contingency occurs, Supplier may allocate production and deliveries among Supplier’s customers. In addition, Supplier will not be liable in any manner
should the United States Department of State determine for any reason that they will not issue an export license to Buyer. Supplier has no influence on these matters, and as such, shall not be held liable or responsible for any inconvenience or loss to Buyer.
6. Limitation of Warranties:
A) Supplier is NOT the original manufacturer of any of the telemetry equipment sold by Supplier. All telemetry related equipment sold by Supplier is refurbished to OEM or better
than OEM electrical standards. All telemetry equipment is used and may show signs of use such as dents, dings, scratches, mars, smudges, scrapes, bent edges, etc.
Supplier warrants that all equipment shall be functional and operate as it was originally intended to operate under normal use for a period of 1 year from date of shipment to Buyer. If the unit fails to operate properly, the Buyer must notify Supplier in writing within 1 year from date of shipment to Buyer. Buyer must contact Supplier to obtain a written RMA number authorizing the return of unit. FAILURE TO OBTAIN A WRITTEN RMA NUMBER FROM SUPPLIER AUTHORIZING RETURN OF UNIT WILL RESULT IN THE UNIT BEING REJECTED AT RECEIVING DOCK. ANY AND ALL SHIPPING, IMPORT, EXPORT, DUTIES, LICENSES, TARIFFS AND LOGISTICS RELATED COSTS ARE THE SOLE RESPONSIBILITY OF THE BUYER. Warranty is deemed void if tamper seals are broken or removed. Should Supplier determine to its satisfaction after evaluation that equipment contains an electrical malfunction arising out of the manufacture of the equipment and not a defect caused by other circumstances, including, but not limited to accident, misuse, cosmetic wear, scratches, dents, dings, unforeseeable use, neglect, alteration, improper installation, improper adjustment, improper repair, or improper testing, Supplier shall at its option repair or replace the equipment. If equipment is returned and it is determined that there are no problems with the unit, Buyer will be charged a $2500 non-refundable service fee. These fees must be paid in advance prior to unit being returned to Buyer. Any such equipment must be returned to the
Supplier at its original shipping point, transportation charges prepaid by the Buyer. Supplier shall have reasonable time to make such repairs or to replace such equipment, up to 90 days after receipt of equipment. Any repair or replacement of equipment shall not extend the period of warranty. This new warranty is limited to a period of 90 days, without regard to whether any claimed defects were discoverable or latent on the date of shipment. B) If Buyer shall fail to pay when due any portion of the purchase price or any other payment required from Buyer to Supplier under this contract or otherwise, all warranties and remedies granted under this Section 6 may, at Supplier’s option, be terminated.
C) THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS, EXPRESS OR IMPLIED, WITH
RESPECT TO THE EQUIPMENT AND ANY DEFECTS THEREIN OF ANY NATURE WHATEVER, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SUPPLIER SHALL NOT BE LIABLE FOR, AND BUYER ASSUMES ALL RISK OF, ANY ADVICE OR FAILURE TO PROVIDE ADVICE BY SUPPLIER TO BUYER REGARDING THE EQUIPMENT OR BUYER’S USE OF THE SAME. UNDER NO CIRCUMSTANCES SHALL SUPPLIER BE LIABLE TO BUYER UNDER ANY TORT, NEGLIGENCE, STRICT LIABILITY, OR PRODUCT LIABILITY CLAIM AND BUYER AGREES TO WAIVE SUCH CLAIMS.
7. Limitation of Liability and Buyer Indemnity: IN NO EVENT, REGARDLESS OF THE FORM OF ACTION, SHALL SUPPLIER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES ARISING OUT OF THE SALE OF ITS PRODUCTS TO BUYER OR ARISING OUT OF ANYTHING DONE IN CONNECTION WITH THE CONTRACT, INCLUDING, BUT NOT LIMITED TO, LOSSES OR DAMAGES ARISING OUT OF CLAIMS FOR LOSS OF USE, BUSINESS, GOODWILL, OR PROFITS, AND CLAIMS ARISING OUT OF THIRD PARTY ACTIONS, REGARDLESS OF WHETHER SUCH THIRD PARTY ACTIONS, OR ANY OTHER CLAIMS, LOSSES, OR DAMAGES, WERE REASONABLY FORESEEABLE TO BUYER OR SUPPLIER. Buyer shall indemnify and hold harmless Supplier, its officers, agents, employees, subsidiaries, parents, affiliates and insurers from and against any and all liabilities, damages, losses, claims, lawsuits, including costs and expenses in connection therewith, for death or injury to any
persons or loss of any property whatsoever, caused in any manner by Buyer’s possession, use or operation of equipment. The Buyer warrants that the Buyer has the technical skill, knowledge, and experience to operate this type of sophisticated telemetry equipment. It is the sole responsibility of the Buyer to understand the technical aspects of the equipment that is being purchased. The Supplier is not the manufacturer of the telemetry equipment and does not provide technical support or make representations on the suitability of said telemetry equipment for the application that the Buyer is using the telemetry equipment for. Buyers purchasing telemetry equipment from Supplier do so at their own risk. In addition, the Buyer warrants that they have the technical expertise to operate said equipment without reliance on Supplier for technical support.
8. Rescheduling and Cancellation: Orders accepted by Supplier may be cancelled or rescheduled by Buyer only with the written consent of Supplier within 2 weeks of the date of the Buyers Purchase Order. Otherwise all sales are final. International customers may not cancel an order after the Export License Application is submitted to the United States Department of State.
9. Non-Waiver; Remedies: No waiver of any breach of these Terms and Conditions shall constitute a waiver of any prior or subsequent breach of any similar or dissimilar provision or a modification of the contract. All Supplier rights and remedies, whether evidenced hereby or by any other contract or document, shall be cumulative and nonexclusive and may be exercised singularly or concurrently.
10. Applicable Law: The validity, performance and construction of the contract shall be governed by the laws of the State of California and/or Michigan. If any provision of these Terms and Conditions is held to be unenforceable, such holding shall not affect the enforceability of any other provision. Any legal presumption that the terms in this contract shall be strictly construed against the party who drafted such terms or who benefits from such terms shall not be employed in construing and interpreting this contract.
11. Export/Import: All Telemetry equipment sold by Supplier is regulated and restricted by ITAR. Once an Export license has been approved by the United States Department of State in the Buyers name it is the responsibility and obligation of the Buyer to maintain the covenants and rules of ITAR. By accepting the equipment Buyer warrants that Buyer will act as custodian of said equipment and abide by all rules and regulations set forth by ITAR. Regardless of any disclosure made by Buyer to Supplier of the ultimate destination of Supplier products, Buyer shall not export either directly or indirectly any Supplier product, or any system incorporating said product either in contravention of statute or regulation or without first obtaining all required licenses and permits from the United States Department of State and any other relevant agencies or
departments of the United States government. Unless unit is returned for repair only, No ITAR Item may be returned to the United States without an additional license paid for and obtained by Buyer. ALL CUSTOMS, DUTIES, TARIFFS, ETC ARE THE SOLE RESPONSIBILITY OF THE BUYER. International ITAR shipments require prepayment by the Buyer and must be shipped on Suppliers FEDEX account. No exceptions.
12. Complete Agreement; Modifications: This contract constitutes the entire agreement between the parties relating to the sale of the equipment and no addition to or modification of any provision of said agreement shall be binding upon Supplier unless agreed in writing by Supplier.