Assignment 400 Group, Inc.

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General Terms & Conditions Of Sale: Equipment

1. Entire Agreement. Notwithstanding any different or additional terms or conditions contained in Buyer's purchase order or other communication, Seller accepts Buyers order only on the condition that Buyer expressly accepts and assents to the terms and conditions contained in this Agreement. In the absence of Buyer's acceptance hereof, Seller's commencement of performance or Seller's acknowledgment of Buyer's purchase order, shall be for Buyers convenience only and shall not be construed as Seller's acceptance of any of Buyers terms. Any confirmation by Buyer that states different or additional terms shall operate as an acceptance of these terms, but Seller hereby objects to and rejects such different or additional terms and any such different or additional terms shall be deemed to be material alterations and notice of objection to them is hereby given. In addition, Buyer's acceptance of any Products shall be deemed to be acceptance of all of the terms and conditions stated in this Agreement. Seller hereby objects to any additional, contradictory or different terms contained in any initial or subsequent order or communication from Buyer pertaining to the Products, including, but not limited to, any indemnification or date century compliance warranty provisions. Any notice by Buyer objecting to these terms must be in writing separate from any form purchase order. Seller's failure to object specifically to provisions contained in any communication from Buyer shall not be deemed a waiver of the provisions contained in this Agreement.

 

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.)

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