These terms and conditions govern the
sale of products and materials (the “Products") by CIRCOMP ELECTRONICS,
INC ("SELLER") to the Buyer listed on the invoice ("BUYER”).
These terms and
conditions take precedence and prevail
over BUYER'S additional or different terms and conditions, to which notice of
objection is hereby given. Acceptance by BUYER is limited to these terms and
Neither SELLER'S commencement of
performance nor delivery shall be deemed or constituted as acceptance of
BUYER'S additional or different terms and conditions.
1. Prices, The prices of the Products
are those specified on the front of the invoice.
2. Taxes. Unless otherwise agreed to in
writing by SELLER, all prices quoted are exclusive of transportations and
insurances costs, and all taxes, including federal, state and local use, sales,
property (ad valorem) and
similar taxes. BUYER agrees to pay all
taxes (except taxes upon SELLER'S net income) unless BUYER has provided SELLER
with an exemption resale certificate in the appropriate form for the
BUYERS place of business and any
jurisdiction to which the Products are to be directly shipped hereunder, or
unless the sale is otherwise exempt from these taxes. BUYER agrees to indemnify
harmless SELLER for any liability for
tax in connection with the sale, as well as the collection or withholding
thereof, including penalties and interest thereon. When applicable,
transportation costs and taxes shall
appear as separate items on SELLER'S
a . Prices stated on the Invoice
include all applicable discounts. Payment shall be made according to the terms
specified on the front of this invoice. SELLER may invoice each shipment
separately and each
shipment shall be considered a separate
and individual contract.
b. All late payments shall be charged
interest computed on a daily basis from the due date until paid in full at the
rate of one and one-half percent (1 1/2 %) per month (18% per year) or the maximum
permitted by law, whichever is less.
c. The carrier will be selected by
SELLER in the absences of specific instructions by BUYER. In no event shall
SELLER be liable for any carrier-caused delay in delivery, nor shall the
carrier be deemed
an agent of the SELLER.
d. 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 that action. Further, on
delinquent account, SELLER shall not be obligated to continue performance under
any agreement with BUYER.
4. Shipments. All shipments will be
made F.OB. SELLER'S shipping dock. Delivery will be deemed complete and risk of
loss or damage to the Products will pass to BUYER upon deliver to the
carrier. SELLER recommends that BUYER
procure insurance to cover BUYER'S risk of loss.
5. Acceptance- The Products shall be
deemed accepted by BUYER unless written notice of defect is received by SELLER
within thirty (30) days of the date BUYER receives the Products,
with a copy of the notice sent to the
carrier, and a claim for defective Products is submitted to SELLER within
thirty (30) days of the date BUYER receives the Products.
6. Limited Warranty-.
a. THE PRODUCTS SOLD UNDER THIS
AGREEMENT ARE SOLD "AS IS" AND "WITH ALL FAULTS". SELLER
MAKES NO REPRESENTATION OR WARRANTY, EITHER EXPRESS, OR ANY
OTHER KIND, TO THEIR QUALITY, CAPACITY,
SUITABILITY, CONSTRUCTION, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR ANY
b Notwithstanding the foregoing, within
30 days after receipt of each shipment of Products, BUYER shall have the right
to examine and test the Products from such shipment to determine if there is
any damage or
defect in the Products. If BUYER
determines that there is a damage or defect, BUYER must provide written notice
to SELLER within 30 days after BUYER'S receipt of the Product that the Products
the shipment were damaged or defective
and must return the damaged or defective Products to SELLER within 30 days
after receipt of the shipment. All claims for any damages, defects, or
shortage, or for
any cause whatsoever (whether the claim
is based on contract, negligence, strict liability, other tort, or otherwise)
shall be deemed waived unless made in writing and received by SELLER within 30
BUYER'S receipt of the Products (and
the Products must be returned to BUYER, within a 30 day period. If the BUYER
returns the Products claiming that there is a defect in the Product, in the
obtains test reports from an
independent test laboratory that the returned Products are not defective, SELLER
is authorized to re-ship the Products back to BUYER.
c. Within 72 hours after receipt of
each shipment of Products, BUYER shall have the right to examine the Products
from such shipment to determine if there is any shortage in the shipment. If
determines that there is a shortage.
BUYER must provide written notice to SELLER within the 72-hour period after
BUYER'S receipt of the shipments of the Products. If BUYER claims that there is
shortage in a
shipment within the 72-hour period.
SELLER may, in SELLER'S sole discretion, (I) ship Products to the BUYER in the
amount of the shortage, or (II) require BUYER to ship the shipment that is
claimed to have
such shortage back to the SELLER, at
BUYER'S expense. If BUYER ships the allegedly short shipment back to the
SELLER, SELLER shall inspect such shipment to determine whether there is a
SELLER determines there is a shortage,
SELLER shall ship them Products back to the BUYER, at SELLER'S expense, and
shall include Products necessary so that the shipment does not contain a
BUYER claims there is a shortage, and
after SELLER'S inspection of the shipment SELLER determines that there is no
shortage. SELLER is authorized to ship the Produces back to the BUYER.
SELLER'S TOTAL LIABILITY FOR ANY AND
ALL LOSSES AND DAMAGES ARISING OUT OF ANY CLAIM WHATSOEVER (WHETHER THE CLAIM
IS BASED ON BREACH OF WARRANTY, BREACH OF
CONTRACT, NEGLIGENCE, STRICT LIABILITY,
OR ANY OTHER LEGAL THEORY) SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE
PRODUCTS IN RESPECT TO WHICH THE CLAIM
ARISES OR, AT SELLER'S OPTION, THE
REPAIR OR REPLACEMENT OF THE PRODUCTS. IN NO EVENT SHALL SELLER BE LIABLE FOR
ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, OR PUNITIVE DAMAGES
RESULTING FROM ANY CLAIM (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS.
BUSINESS LOSSES, DAMAGE TO PROPERTY, OR ANY LIABILITY OF
BUYER TO ITS CUSTOMERS OR THIRD
PARTIES). SELLER is not liable for, and BUYER assumes full liability for, all
personal injury and properly damage connected with the handling,
processing, repackaging, further
manufacture, or other use or resale of goods, whether the Products are used,
along or in combination with any other material.
7. NC/NR - All orders are
8. Restocking Fee. If Seller
decides to accept a return or cancellation, returns of Products by BUYER or
cancellation of an existing order prior to the ship date where the SELLER has
already procured the
Product must first be authorized by the SELLER.
SELLER reserves the right to assess a minimum 20% restocking fee on any
returned Products or cancelled orders. A higher fee may be charged at the sole
discretion of the SELLER.
9. Assignment and Delegation. The
rights and obligations of the BUYER under this contract may not be assigned or
delegated by the BUYER without written, signed consent of the SELLER.
10. Governing Law, The construction,
interpretation and performance of this Agreement and all transactions under it
shall be governed by the laws of the United States of America and the
State of California.
11. Choice of Forum. The parties hereto
agree that any suits, actions or proceedings arising out of this contract that
maybe instituted by any party hereto shall be instituted only in the state or
federal courts in the County of
Los Angeles, State of California, and the
parties hereto do hereby consent to the jurisdiction of those courts and waive
any objection which they may now or hereafter have to venue of those suits,
actions and proceedings.
12. Force Majeure - Except for the
payment of money, neither party shall be held responsible for any delay or
failure in performance of any part of this Agreement to the extent that delay
failure is caused by fire, flood,
explosions, war, terrorism, strike, embargo, government requirement, civil or
military authority, act of God, act or omission of carriers or other similar
beyond its control ("force majeure
conditions"). If any force majeure condition occurs, the party delayed or
unable to perform ("Delayed Party") shall give immediate notice to
the other party
(“Affected Party"), and the
Affected Party, upon giving prompt notice to the Delayed Party, shall be
excused from performance under this Agreement for the duration of the force
condition, provided, however, that the
Affected Party shall take all reasonable steps and cooperate with the Delayed
Party to avoid or remove the cause of nonperformance and shall prompted
resume performance hereunder when the
cause is removed; and provided further that if the Delayed Party cannot within
sixty (60) days remove the cause of nonperformance, the Affected Party
may terminate this Agreement.
13. Non-Waiver No course of dealing or
failure of either party to strictly enforce any term, right or condition of
this Agreement shall be construed as a waiver of that term right or
condition, Waiver by SELLER of a breach
of any of the terms and conditions of this contract shall not be construed as a
waiver of any other breach.
14. Notices, Any notice required or
permitted to be given by either party hereto to the other shall be personally
delivered, or sent certified or registered mail at the address stated on the
Invoice and shall be deemed given when
deposited in the United States mail with postage prepaid.
15. Captions. The captions and headings
in this Invoice are for convenience and reference purposes only and shall not
be construed to defined or limit any of the terms or provisions herein.
16. Entire Agreement This Agreement
shall constitute the entire agreement and understanding between the parties
with respect to the subject matter of this Agreement and shall not be modified,
terminated or rescinded, except by a
writing signed by SELLER and BUYER. The provisions of this Agreement supersede
all prior oral and written quotations, communications, agreements, and
understandings of the parties with
respect to the subject matter of this Agreement.
17. Severability. If any of the terms
or conditions of this contract are found to be illegal or unconscionable by a
court of competent jurisdiction, the remaining terms and
conditions of the Agreement shall stay
in full force and effect.
18. Attorneys' Fees. If any action or
legal proceedings is commenced to enforce the terns and conditions hereof or to
collect on the amount due under the Invoice, the prevailing party shall be
entitled to recover costs and
reasonable attorneys' fees.
19. Intellectual Property. SELLER
disclaims any warranty against infringement with respect to the goods sold
pursuant to this Invoice, and the packaging relating to such goods. SELLER
is not liable with respect to any
actual or alleged infringement of any United States or foreign patent,
trademark, copyright, maskwork right, trade dress, trade secret, or similar
rights. BUYER hereby agrees to
indemnify, hold harmless and defend SELLER from any claim for infringement or
interference with the intellectual property rights of any third party
arising from the Sale or use of the
Products by BUYER.
20. Condition of Product. All products
are new (Unused) when identified as AO. Product identified as AI may or may not
be reconditioned, may or may not have re-tinned leads, may or may not
have been cleaned and may or may not
have straightened leads. All goods sold by SELLER, whether new or used, are not
authorized to be used in life support equipment or for applications in
which the failure or malfunction of the
goods would create a situation in which personal injury or death could occur.
Any such use or safe of goods sold by SELLER is at the sole risk of BUYER,
and BUYER agrees to indemnify and
defend SELLER against and hold SELLER harmless from all costs, liability,
expenses and damages and costs arising out of such use or sale.
21. Indemnity, BUYER hereby agrees to
defend, indemnify and hold harmless SELLER from any and all damage, claims,
liens, encumbrances, or liability arising out of or related to BUYER'S
use, sale, transfer or other handling
of the Products sold by SELLER to BUYER hereunder, except for damages or claims
that arise out of, and only to the extent that such damage is caused by,
SELLER'S gross negligence or willful