SELLER's Acknowledgment and Acceptance are subject to the following terms and conditions:
SECTION 1: Controlling Terms and Conditions
Some of the terms set out here may differ from those in BUYER's purchase or offer, and some may be new. ANY ACCEPTANCE
IS SPECIFICALLY CONDITIONED UPON BUYER'S ASSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN. Unless BUYER notifies
SELLER to the contrary within ten (10) days after receipt of SELLER's Acknowledgment and or Acceptance of any order,
it shall be conclusively presumed that BUYER has agreed that the terms and conditions set forth herein control the
transaction between SELLER and BUYER described herein. These terms shall apply whether or not they are enclosed or
supplied with the products or services to be sold hereunder.
SECTION 2: Price
SELLER's prices are exclusive of all Federal, state, municipal, or other government excise, sales, use, occupational,
gross receipts or like taxes now in force or enacted in the future and, therefore, are subject to an increase by the
amount of any such tax. If a certificate of exemption or similar document is applicable to this transaction which will
exempt the sale from sales, use, or a similar tax liability, BUYER will obtain such certificate or document and deliver
the same to SELLER on or before the time payment is due.
SECTION 3: FOB Point and Delivery
Delivery will be made FOB SELLER's plant in Diamond Bar, California USA. Products held or stored for BUYER at his
request shall be at the risk of BUYER. Risk of loss shall be upon BUYER upon delivery of products to a common carrier
at SELLER's plant in Diamond Bar, California USA.
SECTION 4: Method of Transportation
Unless specifically instructed otherwise by BUYER, SELLER shall select the method of transportation from SELLER's plant
to the destination. Any carrier so selected shall not be the agent of SELLER, nor shall SELLER assume any liability
with regard to the shipment. Costs of transportation shall be the obligation of BUYER.
SECTION 5: Payment
Unless otherwise specified upon SELLER's standard price list in effect at the time SELLER accepts BUYER's purchase order
or offer, or upon an authorized SELLER's quotation in force at the time the order is placed, terms are net cash upon
delivery, except where satisfactory open account credit is established, in which case terms are net 30 days from date of
delivery. SELLER reserves the right to revoke any credit extended at SELLER's sole discretion. Invoices will be issued
upon services or delivery and, in case of authorized deliveries by installments, BUYER agrees to pay such invoices when
due regardless of the status of other scheduled deliveries. A service charge of two percent (2%) per month (24% per annum)
or the maximum rate allowed by law, whichever is less, will be made on past due accounts.
SECTION 6: Insurance
Unless specifically instructed otherwise, SELLER shall purchase insurance on behalf of BUYER for the full value of the
products shipped and charges therefor will be invoiced with the goods.
SECTION 7: Claims for Loss or Damage in Transit
All claims for loss or damage in transit must be made by BUYER directly to the carrier, or the insurer if the products
were insured hereunder. All claims for shortages except those caused by the carrier must be made in writing to SELLER
within seven (7) working days from receipt of shipment by BUYER. Failure to make such claim shall constitute an
acceptance of the products as shipped and a waiver by BUYER of all such future claims.
SECTION 8: Shipment Promises, Delays
SELLER will make every effort to maintain a promised shipping date but, because of many factors beyond the control of
SELLER, the promised shipping date is not guaranteed. SELLER shall not be liable for delays, or failure to deliver,
or loss, or damage caused by delay or failure to deliver occasioned by any cause whatsoever. BUYER waives any right
of claim against SELLER for penalties or damages, direct or consequential, for delayed shipments. Delay in delivery
of partial quantities of an order shall not relieve BUYER of the obligation to accept remaining deliveries.
SECTION 9: Trial Period
A trial period, when applicable, shall be prearranged for not more than a period of ten (10) days after receipt of
equipment, and is required to carry a 20% deposit. Upon acceptance, sale will be subject to SELLER's standard terms
and conditions. In event of return authorization, a refund of any prepayment will be made, provided equipment is
returned within ten (10) days and meets conditions of Section 10.
SECTION 10: Return of Products
No products may be returned for credit without prior written authorization from SELLER and only upon the conditions
specified in any such authorization unless provided for herein. In no event shall returns be accepted unless BUYER
agrees to pay for all deteriorations of such product which have occurred during his possession, all freight, insurance,
and transportation charges, a reasonable charge for clerical and other handling costs, and any other cost or expense
incurred by SELLER in the processing of the order or its return. SELLER shall determine the extent of deterioration
that has occurred.
SECTION 11: Cancellation
BUYER shall be liable for the payment of reasonable cancellation charges, which shall not exceed the retail prices of
the products canceled and shall include, but not be limited to, expenses already incurred by SELLER, actual liabilities
arising from SELLER's commitments to the order involved properly allowable indirect charges and a reasonable profit.
SECTION 12: Warranty
SELLER warrants the products sold shall be free from defects in materials and workmanship under normal use and service
for a period of one (1) year from the date of delivery when properly installed. SELLER warrants that modifications
performed by SELLER to BUYER's equipment shall be free from defects in materials and workmanship under normal use and
service for a period of thirty (30) days from date of delivery when properly installed. This warranty does not apply
to failures of modified equipment unrelated to the modifications performed by SELLER. SELLER's sole obligation under
this warranty shall be limited to repair or replacement at SELLER's option of any such part or parts of the products
which may prove defective under normal use and service within said one (1) year and which the SELLER's examination shall
disclose to its satisfaction to have been defective. If BUYER wishes to have warranty services performed at the
facilities of SELLER, BUYER shall obtain, in advance, permission to return product(s), and shall ship said product(s)
properly packed and insured to the address specified. Service performed at the facilities of SELLER under this warranty
shall include parts plus labor. Items returned under this warranty must be transportation prepaid unless otherwise
agreed by SELLER. It is expressly agreed that SELLER's obligation to repair or replace defective parts is the sole and
exclusive remedy of BUYER for breach of this warranty. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY OTHER
DAMAGES, EITHER DIRECT OF CONSEQUENTIAL.
SELLER warrants that any equipment modified by SELLER will meet or exceed the original equipment manufacturer's
specifications for that equipment when said modified equipment is received by BUYER. SELLER specifically disavows
responsibility for subsequent failure to meet specifications due to drift or failure of components within said equipment
not provided by SELLER as part of the modification.
SELLER may, from time to time, make certain representations concerning the compliance of its products with the Rules
and Regulations of particular governmental agencies. No such representation can be a basis of the bargain unless it
is in writing, by an authorized representative of the SELLER. Should this representation be found to be untrue,
BUYER's sole remedy is the right of recession, at BUYER's option. Under no circumstances shall SELLER be liable for
any other damages, either direct or consequential.
THE WARRANTY TO REPAIR OR REPLACE DEFECTIVE PARTS AND THE REPRESENTATION OF COMPLIANCE WITH GOVERNMENTAL RULES AND
REGULATIONS, WHEN GIVEN IN WRITING, ARE EXPRESSLY IN LIEU OF AND ARE HEREBY IN DISCLAIMER OF ALL OTHER EXPRESS WARRANTIES,
AND ARE IN LIEU OF AND IN DISCLAIMER AND EXCLUSION OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, AS WELL AS ALL OTHER IMPLIED WARRANTIES, IN LAW OR EQUITY, AND OF ALL OBLIGATIONS OR LIABILITY ON
SELLER'S PART. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION HEREOF.
SELLER neither assumes nor authorizes any person to assume for it any liability or obligation in connection with the
sale of SELLER's product except said repair or replacement of the defective part and, when given, compliance with the
applicable governmental agency Rules. SELLER's liability does not include any labor charges for replacement of parts,
adjustments, repairs, or any other work done outside SELLER's factory and SELLER's LIABILITY DOES NOT INCLUDE ANY
CONSEQUENTIAL OR RESULTING DAMAGE TO PERSON, PROPERTY, EQUIPMENT, GOODS, MERCHANDISE, PROFITS, GOODWILL OR REPUTATION
ARISING OUT OF ANY DEFECT IN OR FAILURE OF SELLER'S PRODUCTS. SELLER's outside SELLER's factory in any way, or which
shall have been subject to negligence, misuse, unauthorized alteration or abuse.
SELLER's warranty runs only to the FIRST END USER and does not extend, expressly or by implication, to any other person.
No claim under this warranty will be allowed for materials damaged in transit. Expenses incurred in connection with
claims for which SELLER is not liable hereunder will be charged to BUYER. SELLER shall not be responsible for any
field repairs performed by BUYER unless such work is authorized in writing by SELLER.
SECTION 13: Equipment Design Alteration and Modification
SELLER assumes the right to make alteration and modification(s) in the design and specifications of its product(s).
SECTION 14: Trade Secret, Non-Disclosure; Multiple Uses
BUYER hereby acknowledges that SELLER'S design and modification of BUYER'S equipment is the result of the development, by SELLER, of a process which, because of its unique and unusual nature, represents, in its application and use, a competitive advantage to the SELLER; and is therefore, deemed by the SELLER to be a trade secret. Accordingly BUYER acknowledges that data related, or otherwise pertaining to, the modifications remain at all times, the property of the SELLER; accordingly, Buyer agrees that neither he nor his agents, servants, employees, or assigns will disclose to anyone else, directly or indirectly, whether orally, in writing, by means of graphics, photography or numerical specifications, any information describing, narrating, or otherwise related or pertaining to, the process by which BUYER'S equipment is, or will be, modified. BUYER shall not use, or seek to use, the data related to the SELLER'S modification(s) of the BUYER'S equipment to modify, either by himself, or with the aid or assistance of others, directly or indirectly, any other BUYER'S equipment. If BUYER performs said modification(s) or breaches said confidentiality, BUYER agrees to compensate SELLER for damages, said compensation to be determined in accordance with the rules then obtaining of the American Arbitration Association.
SECTION 15: Verification of Specifications
SELLER will provide, upon written request by BUYER, written verification that the product(s) or modified product(s) meets its published specifications.
SECTION 16: Calibration Instrument Accuracy
All test and measurement instruments used to calibrate SELLER's product(s) and perform modification(s) to BUYER'S existing equipment, and to perform SELLER's calibration services, have calibration traceable to the National Institute of Standards and Technology (formerly the NBS).
SECTION 17: Acceptance of SELLER's Products
The criterion of acceptance of SELLER's product(s) and modification services shall be successful conformance to SELLER's published specifications as determined under SELLER's standard test procedures applicable to the product(s) or modification(s) involved. BUYER assumes responsibility for the proper installation of SELLER's product(s) or modified BUYER's product(s) conjoined with other equipment owned by BUYER unless BUYER has a separate installation contract with SELLER.
SECTION 18: General
A valid contract binding upon SELLER will be created only at the time a written acceptance of the order is dispatched to BUYER by a duly authorized agent of SELLER at Diamond Bar, California USA. If no exception is taken by BUYER according to the provisions of SECTION 1 herein, this contract shall be considered permanently binding ten (10) days after the date of written acceptance. The contract date shall, for all purposes, be the date of the SELLER's acceptance of BUYER's purchase order or offer.
SELLER makes no agreements or representations, verbal or otherwise, outside of this contract. This contract shall be governed and construed in accordance with the laws of the State of California, and venue shall be proper in the County of Los Angeles and City of Diamond Bar where SELLER and BUYER stipulate is the place where this contract was entered into.
If any terms and conditions stated herein are contrary to applicable law, they may be severed and ignored without affecting the sufficiency of the balance of the document unless, from the whole of this document, it appears that the terms are an integral part of this contract. In that case, the whole contract shall be rescinded.
All SELLER's rights and remedies, whether evidenced hereby or by any other contract, instrument, or documents, shall be cumulative and may be exercised singularly or concurrently.
Waiver of performance of any one item of the Agreement shall not be construed as a waiver of performance at a later date as to that item nor as a waiver as to the other items of this contract.
No claim or cause of action of any kind arising under this contract may be asserted in arbitration or in any other forum later than one (1) year after the date of the occurrence of the act or omission giving rise to such cause of action. Except as herein provided to the contrary, these terms and conditions shall inure to the benefit of and shall be binding upon the parties hereto, and their respective heirs, successors and assigns.
SECTION 19: Arbitration
Any controversy arising under or in connection with this contract shall be submitted to arbitration in Diamond Bar, California USA, in accordance with the rules then obtaining of the American Arbitration Association. Judgment on any award may be entered in any court having jurisdiction. The parties hereto submit to the jurisdiction of the Federal and State Courts in Diamond Bar, California USA, and notice of process in connection with arbitral or judicial proceedings may be served upon the parties by registered or certified mail, with the same effect as if personally served. In the event of arbitration, the prevailing party, if there be one, is entitled to reasonable attorneys' fees and/or other costs associated with such arbitration.
SECTION 20: Attorneys' Fees
In the event an action is required to enforce any of the terms and conditions of this contract, the prevailing party therein shall be entitled in addition to the judgment obtained to reasonable attorneys' fees and costs.
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