TERMS AND CONDITIONS FOR PETER PARTS ELECTRONICS, INC.
1. CONTRACT ACKNOWLEDGEMENT: Insofar as they differ from the terms herein, the terms of any signed agreement between the Buyer and Seller shall control. In the absence of such conflicting terms in a signed agreement, the following terms shall control even to the exclusion of conflicting or additional terms submitted at any time by the Buyer upon its own purchase order document.
2. WAIVER: No waiver by Seller, whether express or implied, of any provision of this contract or of any breach or default of Buyer, shall constitute waiver of any other provision of this contract.
a. Seller warrants that the goods which are the subject of this contract are of merchantable quality and meet Seller's specifications in accordance with the contract description on the front side hereof and that said goods shall be free of any rightful claim of infringement; however, Seller does not warrant against infringement or the like if said goods are manufactured or produced in compliance with specifications furnished by Buyer or by reason of the use thereof in combination with other material or in the operation of any process; and Buyer assumes all risk and liability for results obtained by the use of the said goods whether used singly or in combination with other products.
b. Sellers liability under this Section 3 is in place of, and accordingly there are hereby excluded, all warranties, representations, guarantees and conditions, express or implied, which extend beyond the description on the face hereof, and the Seller expressly disclaims any warranties of merchantability and/or fitness for a particular purpose in respect to the product sold hereunder.
c. The Seller will not be liable for any consequential loss or damage (whether for loss of use, profit, contract or otherwise) arising out of the sale or supply of the Products to the Buyer or the Buyer's customers. It is expressly agreed that the Buyer shall be responsible and liable for and shall on demand indemnify and keep indemnified the Seller and its respective servants, agents, and contractors from and against all costs, expenses, damages, claims, obligations, and liabilities whatsoever (including any legal or other professional fees incurred in settling or compromising the same) arising out of:
(1) the distribution, promotion or sale of the Products by the Buyer, or
(2) the acts or defaults (whether or not negligent) of the Buyer, its assigns and their respective servants, agents and contractors or arising out of any breach of or failure to perform its obligations hereunder.
4. SELLER'S LIABILITY: Buyer recognizes that the Product is an electronic product and accordingly there may be a difference of quality from one lot to another and that the Product may be or become defective or otherwise unusable by reason of factors outside the Seller's control. Accordingly it is agreed that the Seller's liability for defective Product shall be limited to replacement of the Product in question or, at the Seller's option, repayment of the purchase price (to the extent payment has been received). The Seller shall have no liability:
a. unless it receives notification of the defect within (60) sixty days after the Product arrives at the shipment destination named in the purchase order or other bill of lading or order; or
b. for any use or application otherwise than in accordance with instruction leaflets or use specifications provided with the Product.
5. CREDIT AND SELLER'S REMEDIES: Notwithstanding the right of Seller to cancel this contract or demand other adequate assurance of performance by Buyer, Seller may, at any time Buyer's credit or financial responsibility becomes unsatisfactory in Seller's opinion, require cash payment in advance of or on delivery. Upon the Buyer's failure to make payment as demanded, or make payments for any prior shipments, Seller may at its option, delay, cancel this contract, and/or sell undelivered installments or the entire balance under commercially reasonable terms and circumstances and hold Buyer responsible for any deficiency.
6. PAYMENT: Terms of payment are Net 30 days. Buyer must provide all necessary and commonly requested information for credit approval. Payment shall be made in U.S. dollars and regardless of controversies relating to other invoices. The Buyer may not take any discount or set-off unless permitted in writing by the Seller. Remittances received from or for account of Buyer, may be applied by Seller against any obligation owing by Buyer to Seller, under this or any other contract, regardless of conditions, provisions, or notations accompanying such remittances or appearing thereon, without discharging Buyer's liability for any additional amounts owing by Buyer or Seller. All tooling, engineering charges, and non-recurring engineering charges are due immediately upon order placement, unless otherwise arranged in writing with Seller.
7. INTEREST: Interest on overdue bills shall be calculated at 18% or, in jurisdictions where such interest is restricted by law to a lesser amount, at the maximum amount permitted in such jurisdiction.
a. Seller shall have no liability to the Buyer for any delay in delivery so long as the Seller has used all reasonable efforts to ensure timely delivery and time of delivery shall not be of the essence unless otherwise agreed to by Seller in writing.
b. Should delivery of all or part of the Products specified herein be delayed, in whole or in part, by events beyond Seller's control, including but not limited to strikes, lockout, fire, natural or man-made disasters, war, threat of war or embargoes, government regulations or Seller's inability to obtain labor, materials or services through its regular sources, Seller's time for performance shall be extended by the period of the delay, or Seller may, at its option, cancel this contract without liability, Buyer remaining liable to pay for shipments already made. If war, threat of war, embargo or lack of transportation facilities prevents or delays delivery of Product ready for shipment, Seller may at its option immediately invoice the Product, and hold the Product for Buyer's account.
c. Any delivery not in dispute shall be paid separately regardless of dispute as to any other delivery or undelivered Products including, but not limited to installment deliveries and part deliveries, provided that the refusal of the Buyer to accept an installment of a delivery may be treated by Seller as a breach of the entire contract. Unless otherwise agreed to by Seller in writing, no rescheduling of deliveries and or cancellations or returns will be accepted after order placement. Seller may allow a 60-day maximum reschedule from the original confirmed delivery date if Product is in stock or in process at the factory.
d. Unless otherwise stated, Products are sold F.O.B. shipping point.
9. RISK OF LOSS: On sales made F.O.B. delivered basis, no allowance for shortage or damage shall be made by Seller unless Buyer furnishes acknowledgement from the carrier that same occurred in transit. Should seller utilize its own equipment, rather than a common carrier, in delivering the goods which are the subject of this contract, risk of loss passes to Buyer upon tender of delivery rather than actual receipt of Product.
On sales made F.O.B. Seller's plant or warehouse, Buyer will, in the event of loss or damage in transit, file its own claim with carrier. In no event shall any risk or loss with respect to the goods which are the subject of this contract be upon Seller once Seller has placed goods in possession of a carrier and made a contract to their transportation.
The Seller shall have no liability for any loss of or damage to Products in transit unless the Buyer shall have notified the Seller in writing of any such loss or damage within ten (10) days of the date of the arrival of the Products at the shipment destination named in a purchase order or other bill of lading or order.
10. ANTICIPATORY BREACH
a. Where Buyer has declared or manifested an intention not to accept delivery or Products, no tender or actual shipment by Seller shall be necessary and Seller may, at its option, give written notice to Buyer that Seller is ready and willing to deliver in accordance with the provisions of this contract and such notice shall constitute valid tender of delivery.
b. Where Buyer, prior to due date has declared or manifested an intention not to pay when payment for same falls due, for any or all of the Products sold hereunder, then notwithstanding that the time of payment for Product has not yet arrived, Seller may at its option take such actions as is provided for herein by way of remedies for breach of this contract by Buyer.
11. CLAIMS AND ALLOWANCES: Special instructions as to handling, use and care of Products, if contained on the face of this contract or on Product labels, tags or other documents furnished to the Buyer in connection with delivery of the Product, are an integral part of this contract and such instructions must be complied with by Buyer. Claims of any kind or nature, except for latent defects are specifically barred unless made in writing by registered mail, return receipt requested, within ten (10) days after receipt of Product.
In the event of any claims that the quality of the Product delivered is not in accordance with this contract, the Buyer shall promptly offer such Product to Seller for inspection in the same condition as when delivered to Buyer or its designee. In the event the Buyer or its agent fails to comply with such requirements, Buyer shall not be entitled to any reduction, allowance, or claim with respect to such Product.
Seller may within thirty (30) days after receipt of written notice by registered mail from Buyer of claim for defective Product, examine and replace any nonconforming Products, and in such event, no claim may be made by Buyer. Buyer may cancel only that portion of the order pertaining to Product found to be defective in quality and not replaced by Seller. Notwithstanding the foregoing, all claims for defects are specifically barred for Products after they have been processed or altered from their original condition of delivery and processing or in any manner altering the form or the Product by Buyer or its agent, constitutes a complete acceptance of such Product and waiver of any claim for defects.
12. INTELLECTUAL PROPERTY: No rights in patents, trade names, copyrights, or other intellectual property interests related to merchandise delivered hereunder or the manufacturing thereof shall pass to Buyer, and Buyer for valuable consideration received, agrees not to replicate, reproduce, simulate or substantially adapt or cause to be reproduced, simulated, or substantially adapted, directly or indirectly, any such patents, trade names, trademarks and copyrights or other intellectual property interests.
13. INCREASE IN COSTS: Seller reserves the right to change prices without notice. If Buyer refuses to pay such increase, Seller may cancel this contract without further notice and hold Buyer liable for resulting damages.
Currency Exchange: Seller has the right to adjust selling price at Seller's prerogative if the U.S. dollar changes more than 5% compared to the currency of the country where the Buyer's items are manufactured. This adjustment will be made at the time of invoice unless otherwise agreed to by the Seller in writing.
14. CUMULATIVE REMEDIES: Seller shall have all rights to pursue any remedy allowed by law, supplemented by any relief Seller has retained under this contract. Under no circumstances shall Seller be required to tender of all or any portion of the goods which are subject of this contract in order to quality Buyer's event of default as breach of contract.
15. ASSIGNMENT: This contract may not be assigned without Seller's prior written consent and any attempt to assign it without such consent shall be void.
16. INSOLVENCY: If a receiver shall be appointed for Buyer or Buyer's property or if Buyer shall be come insolvent or unable to pay its debts as they mature or has ceased to pay its debts in the ordinary course of business, or if Buyer shall make an assignment or trust for the benefit of creditors, or if any proceedings shall be commenced by, for, or against Buyer under the provisions of any bankruptcy, insolvency, or debtor relief law (1) Seller may refuse to ship Product and when notified of said fact before delivery, all Product in transit shall be considered to be in the constructive possession of the Seller and subject to Seller's lien after the Product is received by the Buyer (2) when shipped to Buyer's customers before receiving the aforesaid notice, the Seller's lien shall continue to said Product and attach to the proceeds due Buyer for said Product, and (3) Seller at its option may terminate this contract upon written notice thereof to the Buyer without prejudice to Seller's rights as to any amounts then due and owing to it by Buyer under this or any other contract. In any such event, the Seller's lien shall be deemed perfected as the day immediately preceding the filing of any bankruptcy petition or the initiation of any insolvency proceeding by or against the Buyer.
a. Products invoiced and held by Seller for over thirty (30) days past original delivery date scheduled are subject to storage and other charges.
b. Unless Seller agrees otherwise in writing, all Products are sold without any privilege of return by Buyer.
c. Seller retains the right to refuse any orders not placed at Seller's office where the agreement to purchase originated or such other office as Seller may designate.
d. Any tariffs, taxes, duties, freight bills, deposits or other payments or like nature and compliance with regulations concerning health, safety or environment shall be Buyer's responsibility unless Seller agrees in writing to the contrary and shall not affect performance hereunder.
e. All freight and delivery charges shall be paid by Buyer as a separate item and without discount unless Seller agrees in writing to the contrary and shall not affect performance hereunder.