Terms
and Conditions
DELIVERY AND TITLE:
All shipments by Procure 1, are F.O.B. point of origin and all transportation
charges, shall be paid by customer in addition to the price of the Products.
Subject to Seller's right of stoppage in transit, delivery of the Products
to the carrier shall constitute delivery to Buyer and title and risk
of loss shall thereupon pass to Buyer. Selection of the carrier and
delivery route shall be made by Seller unless, specified by Buyer. Seller
shall use reasonable efforts to initiate shipment and schedule delivery
as close as possible to Buyer's requested delivery dates. Buyer acknowledges
that delivery dates provided by Seller are estimates only and that Seller
is not liable for failure to deliver on such dates. Delivery of a quantity,
which varies from the quantity specified, shall not relieve Buyer of
the obligation to accept delivery and pay for the Products delivered.
Delay in delivery of one installment shall not entitle Buyer to cancel
other installments.
TERMS OF PAYMENT:
Payment shall be Net 30 days from date of invoice or as otherwise specified
by Seller. Buyer agrees to pay the entire net amount of each invoice
from Seller pursuant to the terms of each such invoice without offset
or deduction. Orders are subject to credit approval by Seller, which
may in its sole discretion at any time change the terms of Buyer's credit,
require payment in cash, bank wire transfer or by official bank check
and/or require payment of any or all amounts due or to become due for
Buyer's order before shipment of any or all of the products. If Seller
believes in good faith that Buyer's ability to make payments may be
impaired or if Buyer shall fail to pay any invoice when due, Seller
may suspend delivery of any order or any remaining balance thereof until
such payment is made or cancel any order or any remaining balance thereof,
and Buyer shall remain liable to pay for any Products already shipped
and all Non-Standard Products ordered by Buyer. Buyer agrees to submit
such financial information from time to time as may be reasonably requested
by Seller for the establishment and/or continuation of credit terms.
Checks are accepted subject to collection and the date of collection
shall be deemed the date of payment. Any check received from Buyer may
be applied by Seller against any obligation owing from Buyer to Seller,
regardless of any statement appearing on or referring to such check,
without discharging Buyer's liability for any additional amounts owing
from Buyer to Seller, and the acceptance by Seller of such check shall
not constitute a waiver of Seller's right to pursue the collection of
any remaining balance. Buyer shall pay interest on any invoice not paid
when due from the due date to the date of payment at the rate of two
(2%) percent per month. If Buyer fails to make payment when due, Seller
may pursue any legal or equitable remedies, in which event Seller shall
be entitled to reimbursement for costs of collection and reasonable
attorneys fees.
LIMITATION OF LIABILITIES:
BUYER SHALL NOT IN ANY EVENT BE ENTITLED TO, AND SELLER SHALL NOT BE
LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF
ANY NATURE INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION COSTS,
REMOVAL AND/OR REINSTALLATION COSTS, REPROCUREMENT COSTS, LOSS OF PROFIT
OR REVENUE, LOSS OF DATA, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD,
INJURY TO REPUTATION OR LOSS OF CUSTOMERS, EVEN IF SELLER HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. BUYER'S RECOVERY FROM SELLER FOR
ANY CLAIM SHALL NOT EXCEED BUYER'S PURCHASE PRICE FOR THE PRODUCT GIVING
RISE TO SUCH CLAIM IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER
IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. SELLER SHALL NOT BE LIABLE
FOR AND BUYER SHALL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM
ANY CLAIMS BASED ON SELLER'S COMPLIANCE WITH BUYER'S DESIGNS, SPECIFICATIONS
OR INSTRUCTIONS, OR MODIFICATION OF ANY PRODUCTS BY PARTIES OTHER THAN
SELLER, OR USE IN COMBINATION WITH OTHER PRODUCTS.
SELLER'S LIMITED WARRANTY:
Seller warrants to Buyer that upon delivery to Buyer and/or the Buyers
customers, the Products purchased hereunder shall conform to the applicable
manufacturer's specifications for such Products and that any value-added
work performed by Seller on such Products shall conform to applicable
Buyer's specifications relating to such work. Seller makes no other
warranty, express or implied, with respect to the Products. IN PARTICULAR,
SELLER MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE PRODUCTS
OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OR
RESPECTING INFRINGEMENT. With respect to Products which do not meet
applicable manufacturer's specifications and with respect to value-added
work by Seller which does not meet applicable Buyer's specifications,
Seller's liability is limited, at Seller's election, to (1) refund of
Buyer's purchase price for such Products (without interest), (2) repair
of such Products, or (3) replacement of such Products; provided, however,
that such Products must be returned to Seller, along with acceptable
evidence of purchase, within thirty (30) days from date of delivery,
transportation charges prepaid. Seller shall transfer to Buyer whatever
transferable warranties and indemnities Seller receives from the manufacturer
of the Products, including any transferable warranties and indemnities
respecting patent infringement.
USE OF PRODUCTS IN LIFE SUPPORT, NUCLEAR AND CERTAIN OTHER APPLICATIONS:
Products sold by Seller are not designed, intended or authorized for
use in life support, life sustaining, nuclear, or other applications
in which the failure of such Products could reasonably be expected to
result in personal injury, loss of life or catastrophic property damage.
If Buyer uses or sells the Products for use in any such applications:
(1) Buyer acknowledges that such use or sale is at Buyer's sole risk;
(2) Buyer agrees that Seller and the manufacturer of the Products are
not liable, in whole or in part, for any claim or damage arising from
such use; and (3) Buyer agrees to indemnify, defend and hold Seller
and the manufacturer of the Products harmless from and against any and
all claims, damages, losses, costs, expenses and liabilities arising
out of or in connection with such use or sale.
EXPORT CONTROL:
The sale, resale or other disposition of Products and any related technology
or documentation are subject to the export control laws, regulations
and orders of the United States and may be subject to the export and/or
import control laws and regulations of other countries. Buyer agrees
to comply with all such laws, regulations and orders and acknowledges
that it shall not directly or indirectly export any Products to any
country to which such export or transmission is restricted or prohibited.
Buyer acknowledges its responsibility to obtain any license to export,
re-export or import as may be required.
STATEMENTS AND ADVICE:
If statements or advice, technical or otherwise, are offered or given
to Buyer, such statements or advice shall be deemed to be given as an
accommodation to Buyer and without charge and Seller shall have no responsibility
or liability for the content or use of such statements or advice.
INTELLECTUAL PROPERTY:
If an order includes software or other intellectual property, such software
or other intellectual property is provided by Seller to Buyer subject
to the copyright and user license, the terms and conditions of which
are set forth in the license agreement accompanying such software or
other intellectual property. Nothing herein shall be construed to grant
any rights or license to use any software or other intellectual property
in any manner or for any purpose not expressly permitted by such license
agreement.
FORCE MAJEURE:
Seller shall not be liable for failure to fulfill its obligations herein
or for delays in delivery due to causes beyond its reasonable control,
including, but not limited to, acts of God, natural disasters, acts
or omissions of other parties, acts or omissions of civil or military
authority, Government priorities, changes in law, material shortages,
fire, strikes, floods, epidemics, quarantine restrictions, riots, war,
acts of terrorism, delays in transportation or inability to obtain labor
or materials through its regular sources. Seller's time for performance
of any such obligation shall be extended for the time period of such
delay or Seller may, at its option, cancel any order or remaining part
thereof without liability by giving notice of such cancellation to Buyer.
JURISDICTION AND VENUE:
Buyer agrees that any legal action brought against seller, shall be
governed by the laws of the State of California without regard to its
conflict of law principles. Buyer agrees that the sole jurisdiction
and venue for any litigation arising from systems purchased from seller
shall be an appropriate federal or state court located in Orange County
California.
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