2.
Payment. Invoices are due and payable net 30 days from date
of invoice. Buyer's outstanding unpaid balances shall be subject to
a finance charge of 1.5% per month until paid in full (or such lower
rate as may be the maximum permitted by law). Buyer shall also pay
Seller's cost of collection (including reasonable attorney's fees).
Payments received may be applied by Seller against any obligation
owed by Buyer to Seller. Seller may refuse or delay shipments if
Buyer fails to pay promptly any payments due Seller. Any authorized
early payment discounts must be taken at the time of invoice payment
and will be calculated from the invoice date to the date payment is
received by Seller. Any unauthorized early payment discounts taken
by Buyer will be billed to Buyer. All payments must be in U.S.
Dollars. All credit memos issued by Seller shall permanently expire
one (1) year from the date of issuance.
3. Price & Taxes. Unless otherwise specified all
prices are F.O.B. point of origin Seller’s source. Written
quotations are valid for 30 days from issuance. Seller may increase
the price of any Products ordered by Buyer but not yet shipped by
Seller if Seller's cost for such Products has been increased by
Seller's Supplier. Seller may increase his quoted price by a
percentage equal to the percentage of increase in Seller's cost for
Products and Buyer agrees to pay such increased price in accordance
with this Agreement. Buyer shall pay (and prices do not include) all
sales, use, services, excise, tariffs, or similar taxes or charges
unless Buyer provides Seller with valid tax exemption certificates.
4. Delivery. Unless otherwise specified Products
are shipped F.O.B. point of origin. Title and risk of loss shall
pass upon Seller’s delivery of Products to carrier. Buyer shall pay
all freight, handling, delivery, special packaging and insurance
charges for shipment of Products. Choice of carrier and shipping
method and route shall be at Seller’s election. Seller shall have
the right to deliver all Products covered hereby at one time or in
partial shipments from time to time, within the agreed time for
delivery. Seller shall not be liable for delays in delivery or for
failure to perform due to causes beyond the reasonable control of
Seller, including, but not limited to, force majeure, acts of God,
acts or omission of Buyer, acts of civil or military authorities,
fire, strikes, power surges or outages, epidemics, quarantine
restrictions, flood, natural disasters, riot, war, delays in
transportation or inability to obtain, necessary labor, materials or
supplies. In the event of any such delay, the set date of delivery,
if any, shall be extended for a reasonable period, or, the delivery
may be canceled at Seller’s option.
5. Acceptance. Upon receipt of Product, Buyer
agrees to inspect and/or test Products Inspection or testing shall
be competed promptly and in no event later than 10 days after
delivery of Products. Products shall be deemed accepted by Buyer
unless Buyer provides Seller, within 10 days of the initial
inspection period, a written notice specifying all defects or
discrepancies in the quality or quantity of Products.
6.
NCNR Materials. Any Product that is or being designated as
NCNR (non-cancelable, non-returnable) or Customer Specific (CS)
shall be considered strictly as non-cancelable, non-returnable and
non-reschedulable. Buyer assumes full liability for any Product (NCNR
Materials) that: (a) has been shipped to Buyer and/or (b) is being
held in Sellers inventory for Buyer and/or (c) has been ordered by
Seller from and been manufactured by Seller's Supplier’s, in whole
or in part, and/or (d) is part work-in-process and/or pre-built
value enhanced Product being held in Seller's or its subcontractor's
inventory for Buyer. Buyer shall pay any cancellation charges
invoiced to Seller by its Supplier with respect to NCNR Materials,
as well as any related labor, transportation, raw materials and
storage costs.
7.
Cancellation/Rescheduling. Except for NCNR materials, Buyer
may cancel or reschedule orders prior to
delivery to the carrier only upon 5 days written notice and written
consent of Seller. If Seller consents to the cancellation of an
order for Products, in Seller's discretion, Buyer shall pay Seller
any Supplier's restocking fee and reasonable cancellation charges.
Buyer may only request rescheduling of deliveries for orders having
an original delivery date of no less than 60 days from the date a
written rescheduling request is received by Seller. If Buyer
requests an accelerated delivery date, Seller will use reasonable
efforts to meet such request. If Buyer
requests a delayed delivery date, the rescheduled delivery date may
not be greater than 60 days later than the original delivery date.
Any extra cost incurred by Seller to meet Buyer's request for
rescheduling/cancellation will be Buyer's responsibility.
8.
Returns. Buyer may only return Products with Sellers
consent and in accordance will Sellers Return Policy. Upon
confirmation of right to return, Seller shall issue or cause to be
issued a Return Material Authorization. Buyer shall return Products
F.O.B. Buyer’s plant, freight prepaid, in accordance with Seller's
instructions in their original package and in good condition,
without alteration. Upon receipt of returned Products which comply
with this Section 8 and Sellers Return Policy, Seller has the right
to issue and Buyer agrees to accept a credit memo in the amount of
the value of the returned Products which may be used as a credit
toward future purchases for a period of one (1) year after issuance.
9.
Statements of Work. Sales of certain Products require a
mutually agreed upon written statement of work and
specifications. All specifications are based solely upon information
provided by Buyer unless otherwise expressly agreed to by boll
parties in writing. Buyer represents and warrants that all
specifications shall be accurate and
complete. Buyer represents and warrants that it owns and/or has the
right to use any intellectual property contained in its
specifications provided to Seller and/or its Suppliers or
subcontractors. Buyer agrees to indemnify and hold Seller, its
Suppliers and subcontractors (which parties shall be third party
beneficiaries of this section 9) harmless from any third party claim
as to any such intellectual property rights that may arise out of
Buyers specifications (including, but not limited to, reasonable
attorney fees, court costs and costs of investigation and defense).
10.
Warranty and Warranty Limitations. Buyer
acknowledges that Seller acts solely as a third party distributor of
Items and that only the Supplier of Items shall be responsible to
Buyer, Seller and third parties for all defects, breaches,
liability, claims, damages, obligations, and costs and expenses
related to Items (whether legal or equitable) (Claims). Buyer agrees
to look solely to the Supplier of the Products for all Claims
whether arising from breaches of Supplier's warranty or otherwise
and for any maintenance, support, repair or replacement or other
remedy with respect to Claims. Seller transfers to Buyer any
transferable warranty and indemnity made to Seller by Supplier of
Products to the extent transferable and permitted by law. Seller
makes no representation, covenant or warrant with respect to the
extent or enforceability of Supplier's warranty or indemnity. Seller
warrants that Services will be performed in a workmanlike manner and
will substantially conform to the agreed to specifications at the
time of performance. Unless otherwise expressly agreed in writing by
Seller, Seller warrants its Services for a period of 10 days from
the earlier of the date of completion of said Services or Shipment
of Products to Buyer. Seller does not warrant result; or
achievements of Services and Seller is not responsible for the work
or activity of any non-Seller employed personnel. Seller makes no
other warranty, express or implied, with respect to Items or
Services. SELLER DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, WITH
RESPECT TO (A) THE MERCHANTABILITY OF PRODUCTS, (B) THE FITNESS OF
PRODUCTS FOR ANY PARTICULAR PURPOSE OR USE OF BUYER, (C) WHETHER THE
USE OF THE ITEMS OR SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE,
(D) WHETHER THE ITEMS OR SERVICES WILL FUNCTION WITHOUT INTERRUPTION
OR OTHER MALFUNCTION CAUSED BY THE PROCESSING OF OR OCCURRENCE OF
ANY DATE, (E) ARISING BY ANY COURSE OF DEALING, COURSE OF
PERFORMANCE OR USAGE OF TRADE, (F) NONINFRINGEMENT OR (G) TITLE TO
SOFTWARE. Buyer's sole and exclusive remedy for nonconforming
Products shall be, at Seller's option, the replacement or repair of
Items or re-performance of Services at Seller's cost or Seller's
refund of purchase price. No repair, replacement or re-performance
shall extend any warranty period.
11.
Limitation of Liability. IN NO EVENT SHALL SELLER'S
LIABILITY ARISING IN CONNECTION WITH OR UNDER THIS AGREEMENT
(WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT, TORT,
MISREPRESENTATION, FRAUD, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR
ANY OTHER THEORY OF LAW) EXCEED THE PURCHASE PRICE OF PRODUCTS.
12.
Limitation of Damages. BUYER SHALL IN NO EVENT BE
ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR, INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, INCLUDING, BUT
NOT LIMITED TO, TO LOSS OF PROFIT, PROMOTIONAL AND/OR MANUFACTURING
EXPENSES, OVERHEAD, INJURY TO REPUTATION AND/OR LOSS OF CUSTOMERS OR
DATA.
13.
Supplier Restrictions as to Use of Products. Buyer
acknowledges that absent express written authorization from the
applicable Supplier, Products are not designed for and are not
permitted to be used in connection with the support systems, human
implantation, medical devices, nuclear facilities, nuclear systems
or weapons, aviation, mass transit or any applications where failure
or malfunction could lead to possible loss of life or catastrophic
property damage. Buyer acknowledges notice of Supplier's
restrictions with regard to use of Products. If Buyer directly or
indirectly uses Products for any of these applications, Buyer agrees
to indemnify, defend and hold Seller, its subcontractors and
Supplier in respect of such Product (which parties are third party
beneficiaries of this section 13) harmless from any and all claims,
damages or fatality (including, but not limited to, reasonable
attorney fees, court costs, and costs of investigation and defense)
arising from such unauthorized use of such Products.
14. Intellectual Property. Seller Shall have no
liability or obligation in connection with any claims of
infringement to any patent, trademark, copyright, trade secret or
other proprietary right or information.
15. Advice. If technical advice is offered or
provided in connection with the sale of any Products it is provided
as an accommodation to Buyer, without charge, and Seller does not
warrant and has no responsibility or liability whatsoever for the
content of or use of such advice.
16.
Security for Obligations. To secure the payment of
the purchase price of Products sold, Buyer grants Seller a purchase
money security interest in all Products sold under this Agreement
whether constituting equipment, inventory, goods, fixtures, payment
intangibles and/or general intangibles including all accessions to
and replacements thereof, and all proceeds of the foregoing. Buyer
authorizes Seller to file one or more financing statements signed
only by Seller without Buyer's signature and to use a copy of this
Agreement as an exhibit to any financing statement. Upon Seller's
request, Buyer shall execute any additional documents, instruments,
financing statements or amendments to perfect or continue the
security interest created by this Agreement. Seller shall have all
of the rights and remedies of a secured party under the Uniform
Commercial Code in effect in the State of Georgia from time to time,
which remedies shall be cumulative and not exclusive.
17. Compliance with Export Laws; FCPA. Buyer agrees
to comply with all US Export, and Anti-boycott laws and with the
United States Foreign Corrupt Practices Act Buyer agrees not to, and
agrees not to permit any of its customers to, sell, market, export,
transfer, or re-export Products (including software with
encryption), Services, technical data or technology to any
restricted country or to any company, individual or governmental
entity listed in the Table of Denial Orders published from time to
time by the US. Government (called denied parties). If it exports
any Products, Buyer will be the exporter of record and will obtain
any licenses or authorizations from the US Department of Commerce or
the US Department of State required for the export or re-export of
any Products (or encryption Products), Services, technical data or
technology. Buyer agrees that its employees and agents will not
offer, pay, promise to pay, give or promise to give any money or
anything of person, while knowing or having reason to know that all
or a portion of such money or thing of value will be offered, paid,
given or promised, directly or indirectly, for purposes or
influencing any act or decision of any of the foregoing persons or
entities or inducing any of the foregoing persons or entities to use
his, her or its influence with a government entity or
instrumentality to affect or influence any act or decision of such
government entity or instrumentality. Buyer represents and warrants
that none of its officers, directors or employees is an official or
employee of a government entity or instrumentality. Buyer agrees not
to employ any such individual during the term of this Agreement
without the prior written consent of Seller. Buyer agrees to
indemnify, defend and hold Seller harmless and any of its Suppliers
from losses, claims or damages incurred (including, but not limited
to, reasonable attorney fees, court costs, and costs of
investigation and defense) by Seller because of Buyer's failure to
comply with this Section or Section 19. Products sold under a US
Government contract shall be governed by those FARS or DFARS which
pertain to the sale of “commercial items” (as defined in the FARS or
DFARS, as the case may be).
18.
Disputes. All unresolved disputes under this
Agreement concerning or in connection with Products shall be
resolved in a court of competent jurisdiction for the location of
Seller's place of business filing the order, except that orders
placed and paid for through Seller's Internet Website shall be
maintained in courts sitting within the State of Georgia, Cobb
County. Buyer consents and agrees that jurisdiction and venue for
such proceedings shall lie exclusively with such courts. No action
or other claim, regardless of form, arising out of or in any way
connected with or related to Products, may be brought by Buyer more
than one (1) year after the cause of the action or claim has
accrued.
19.
General. All agreements, covenants, conditions and
provisions contained herein shall apply to and bind the
assignees and successors in interest of Seller and Buyer. Buyer
agrees that its conduct and use or resale of Products sold by Seller
shall be in compliance with all applicable laws. This Agreement is
not assignable by Buyer without Seller's prior written consent.
Facsimile signatures or other reliable means of authentication by
which Buyer signifies its assent to this Agreement shall be
effective to bind Buyer to this Agreement. The waiver by Seller of
any breach or default shall not be deemed to be a waiver of any
later breach or default. The exercise or failure to exercise any
remedy shall not preclude the exercise of that remedy at another
time or of any other remedy at any time. If any provision or portion
of this Agreement is held to be invalid, illegal, unconscionable or
unenforceable, the other provisions and portions shall not be
affected. The headings are used for the convenience of the parties
only and shall not affect the construction or interpretation of this
Agreement. Any clerical errors are subject to correction. This
Agreement shall be governed by the laws of the State of Georgia and
incorporates the terms of the Uniform Electronic Transactions Act as
enacted in Sections 1306.01 et seq. of the Georgia Revised Code,
including, but not limited to, the definitions of "Electronic
Record”, "Electronic Signature", and 'Contract', whether or not
capitalized herein. [AIl shipping terms shall be interpreted in
accordance with INCOTERMS 2000 which, unless expressly agreed to in
writing, shall supersede any inconsistent term set forth in this
Agreement. This Agreement shall not be governed by the UN Convention
on the International Sale of Goods.)