1. ENTIRE AGREEMENT. EPtronics’s (Seller) Terms and Conditions of Sales shall apply to all orders and obligations negotiated between the Parties. These terms supersede any prior written or oral agreements or understandings, or any preprinted or standard terms on any purchase order, invoice, acknowledgement, or similar document exchanged between the parties, and shall not be supplemented by any previous course of dealing, performance, or usage of trade. Buyer’s assent to EPtronics’s Terms and Conditions of Sale as set forth herein shall be, within three (3) days from receipt hereof, conclusively presumed from either Buyer’s failure to object in writing or acceptance of any or all of the products ordered. EPtronics’s acknowledgement of the Buyer’s purchase order does not imply EPtronics’s acceptance of the terms and conditions thereof, regardless of how they are prefaced or described. EPtronics reserves the right to modify these Terms and Conditions at any time and, as of the date of modification, all new transactions entered into between EPtronics and its Buyers shall be governed by the modified document. The paragraph titles in the Agreement are for convenience only and shall not be used to vary the meaning of the text of this Agreement or interpreted as a compete list of topic referrals. If any provision of this agreement is found to be invalid, such provision shall be ineffective only to the extent of such invalidity, construed in accord with its economic intent and all other provisions shall remain in effect.
2. PRICES. Prices are FOB Los Angeles for the specific quantity stated unless otherwise noted. Prices do not include taxes, duties, or license fees, nor charges for transportation, engineering documentation or special testing, marking or packaging. Buyer agrees to remit to EPtronics any tax or other government charge, domestic or foreign, upon the production, sales, shipment or use of the product which EPtronics is required to pay or collect from Buyer, unless Buyer furnishes a tax exemption certificate to EPtronics. Prices are USD and subject to change without notice
3. QUANTITY DISCOUNTS. When quantity price discounts are quoted, they are computed separately for each type of product or equipment, and are based on the quantity of each type and each size ordered at any one time for immediate delivery. If any order is reduced or cancelled, it is agreed that prices will be adjusted upward to the higher prices, if applicable, for the remaining quantity.
4. QUANTITY ADD-ONS. Change order or additional orders for identical items received with seven (7) days of the original order may be combined for quantity price advantage, if any.
5. QUANTITY MINIMUMS. Unless otherwise agreed, the minimum order is five hundred dollars ($500) per item, per delivery, per destination.
6. QUANTITY VARIATIONS. The normal variation between an ordered and the actual manufactured quantity is, for larger production runs, plus 2% minus 5% per item. Buyer agrees to accept and pay for overages up to 2% of item order quantities. Orders with shipments of 95% or more of the order quantity shall be considered complete and the Buyer shall be invoiced for the actual quantity shipped. Claims against EPtronics for shortages must be made within ten (10) days after arrival of shipment.
7. QUALITY LEVELS. Prices are based on quality levels commensurate with EPtronics’s normal processing. If a different quality level is required, Buyer shall specify the requirements in writing and pay any additional costs that may apply.
8. ORDER SCHEDULE & PRICES. Orders shall be scheduled for delivery within twelve (12) months from order date. Products containing precious or volatile price materials are priced for shipment with three (3) months after order date, and thereafter are subject to price adjustment in accord with the then prevailing prices for such materials. Subject to the above restrictions, one reschedule per order will be allowed at no charge and one hundred dollar ($100) charge shall apply to each schedule change thereafter.
9. PAYMENT TERMS. Payment terms are net thirty (30) days from date of invoice, subject to approval by EPtronics of amount and terms of credit, unless otherwise stated. If for any reason Buyer’s credit is or becomes exceptionable to EPtronics, either before or after order acceptance, EPtronics reserves the right to require payment in advance, or deliver COD, or to otherwise modify credit terms. Pending correction of any unsatisfactory credit situation, EPtronics may withhold shipments without incurring any liability to Buyer. When partial shipments are made, payment therefore shall become due in accordance with the designated terms of the invoice. If at the request of Buyer, shipment is postponed for more than thirty (30) days, payment will become due thirty (30) days after notice to Buyer that products are ready for shipment.
A Service Charge of 1.5 % per month on any unpaid balance shall be imposed on all accounts not paid when due. Buyer agrees to pay all cost of collection, including reasonable attorneys fees in the event it becomes necessary to enforce payment therefore.
10. DELIVERY. All deliveries will be FOB Los Angeles, unless otherwise agreed. In the absence of specific instructions, EPtronics will select the carrier. All risks, title, and right of possession to such goods, pass to the Buyer upon EPtronics’s delivery to the carrier at the point of shipment, subject to a security interest until payment is received. Products held for Buyer, or stored for Buyer, shall be at the risk and expense of Buyer.
11. DELIVERY DATES, FORCE MAJEURE. All acknowledged shipping dates are approximate, based upon known conditions existing at the time of order placement. EPtronics will, in good faith, endeavor to ship by the estimated shipping date, but shall not be responsible for any delay or any damage arising there from. If Buyer’s order does not cite desired delivery date(s), Buyer agrees that immediate delivery is acceptable if condition arise which prevent compliance with delivery schedules. EPtronics shall not be liable for any damages, including general, incidental, consequential or otherwise, arising from delays in delivery, or for failure to give notice of delays, and further such delays shall not constitute grounds for cancellation. Without limiting the generality of the foregoing, EPtronics shall under no circumstances be responsible for any failure to fill an order when due to failure to obtain export licenses, export controls, fires, floods, earthquakes, riots, strikes, freight embargoes, transportation delays, shortage of labor, inability to secure fuel, material, supplies, or power or other energy requirements, or on account of shortage thereof, acts of God or of the public enemy, or any existing or future laws or acts of Government (including specifically, but not exclusively, any orders, rules or regulations issued by any official of any such government) affecting the conduct of EPtronics’s business which, in its judgment and discretion, EPtronics deems advisable to comply with either as a legal, or patriotic duty, or to any other cause beyond EPtronics’s reasonable control. In the event EPtronics is prevented from completing any part of Buyer’s order, because of any rule, regulation or order of any local, state or national government, or of any such government’s commission, body, or authority having jurisdiction, then Buyer agrees upon request and receipt of invoice therefore, to promptly remit to EPtronics for any product or products which are completed or are in process, an amount proportionate to the stage of completion of the work as reasonably determined by EPtronics.
12. INSPECTION AND ACCEPTANCE. Unless Buyer notifies EPtronics in writing within thirty (30) days from date of shipment of any products that said products are rejected, they will be deemed to have been accepted by Buyer. In order to be effective, the notice of rejection must specify in writing the reason(s) why the products are being rejected.
13. TOOLING. Unless otherwise expressly agreed, in a separately executed writing, EPtronics shall retain title to and possession of any models, patterns, dies, molds, jigs, fixtures, tools, and test equipment made or obtained for the performance of this order.
14. PRODUCT WARRANTY. EPtronics warrants that at the time of shipment the standard products manufactured by EPtronics and sold hereunder will be free from defects in material and workmanship, and will conform to specification. Buyer shall notify EPtronics immediately if any defect within the warranty should appear.
A. Warranty Adjustment (1) If any defect within this warranty appears, Buyer shall notify EPtronics immediately. (2) EPtronics agrees to repair or furnish a replacement for, but not install, any product which within Five (5) years from the date of shipment by EPtronics shall, upon examination by EPtronics, prove defective within the above warranty. (3) No product will be accepted for return or replacement without written authorization of EPtronics. Upon such authorization, and in accordance with instructions by EPtronics, the product will be returned shipping charge prepaid by Buyer. Replacements made under this warranty will be shipped prepaid by Seller.
B. Exclusions from Warranty (1) This warranty does not extend to any product manufactured by EPtronics which has been subjected to misuse, neglect, accident, improper installation or to use in violation of instructions furnished by EPtronics. (2) This warranty does not extend to or apply to any unit which has been repaired or altered at any place other than at EPtronics’s factory, or by persons not expressly approved by EPtronics. (3) Components purchased or made by Buyer from any supplier other than EPtronics shall bear only the warranty given by the manufacturer of that product, and EPtronics assumes no responsibility for the interface of its product with any other product, and such responsibility shall remain with Buyer for interface, functionality, and intended use.
THE FOREGOING WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER EXPRESSED OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR USE OR OTHERWISE.
15. LIMITATION OF LIABILITY. EXCEPT FOR THE OBLIGATIONS ASSUMED BY EPtronics UNDER THE PRODUCT WARRANTY CLAUSE, SELLER WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR LOSSES, DAMAGES, OR EXPENSES DIRECTLY OR INDIRECTLY ARISING FORM THE DESIGN, MANUFACTURE, SALE, USE OR REPAIR OF THE PRODUCTS, OR ANY INABILITY TO USE THEM EITHER SEPARATELY OR IN COMBINATION WITH ANY OTHER EQUIPMENT OR MATERIAL, OR FROM ANY OTHER CAUSE. BUYER AND SELLER AGREE THAT IN NO EVENT WILL EPtronics BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE CONTRACT PRICE OF THE PRODUCT WHICH PROVES TO BE DEFECTIVE. THE REMEDIES PROVIDED FOR IN THIS AND THE PRECEDING PARAGRAPHS SHALL CONSTITUE THE SOLE RECOURSE OF BUYER AGAINST SELLER FOR ANY ALLEDGED BREACH OF SELLER’S OBLICATIONS UNTER THE CONTRACT WITH BUYER, WHETHER SUCH CLAIM IS MADE IN TORT OR IN CONTRACT, INCLUDING CLAIMS BASED ON WARRANTY, NEGLIGENCE OR OTHERWISE.
16. TERMINATION. Buyer’s order may not be modified, terminated, or otherwise rescinded except in writing, signed by Seller and Buyer. If all or part of Buyer’s order is terminated by such modification or rescission, Buyer, absent a signed written agreement to the contrary, shall pay termination charges to Seller of costs, as determined by accepted accounting principles, plus a reasonable profit; except that any product scheduled for completion within 60 days of Buyer’s request for termination or rescheduling will be accepted and paid for in full by Buyer. EPtronics reserves the right to pre-purchase material and to begin production in time to meet Buyer’s delivery date based on conditions in its plants and lead time required by EPtronics suppliers. In the event of Buyer’s default breach, or cancellation for any cause including failure to obtain an export license, Buyer shall be responsible for any losses resulting there from.
17. STATUE OF LIMITATIONS. Buyer agrees that any action for an alleged breach of this Agreement must be commenced within one year after the cause of action has accrued, without regard to the date the breach is discovered. Any action not brought within this one year time period shall be barred, without regard to any other limitations period set forth by law or statute.
18. GOVERNING LAWS. The terms of this Agreement and all rights and obligations hereunder, shall be governed in accordance with the laws of the State of California. Buyer hereby consents and submits to the jurisdiction of the appropriate courts in the State of California for adjudication of any question of law or fact arising hereunder.
19. NEGOTIATION, MEDIATION, ARBITRATION. Any dispute arising out of or relating to the Agreement shall be resolved per the procedures specified by the International Institute for Conflict Prevention & Resolution (CPR)
A. Negotiation Between Executives. The parties shall first attempt to resolve any dispute arising out of this contract by prompt negotiation between executives who have authority to settle the matter.
B. Mediation. If not resolved by negotiation, the parties agree to submit the dispute to mediation under CPR rules. The mediation shall be held in Los Angeles County, California and if one party has failed to participate in negotiation, the other party may initiate mediation immediately. Unless otherwise agreed, the parties will select a mediator from the CPR’s panel of neutrals.
C. Binding Arbitration. Any dispute arising from this agreement not resolved within forty-five (45) days after initiation of such mediation shall be finally resolved by arbitration in accordance with CPR Rules for Non-Administered Arbitration then currently in effect, conducted in English, by a sole arbitrator, In Los Angeles County, USA. This arbitration shall be governed by the USA’s Federal Arbitration Act, Title 9, US Code, Section 1-16, in accordance with the governing law of the State of California, excepting that no conflicts of laws, rules, or the United Nations Convention on the International Sale of Goods, shall apply. Judgment upon an arbitration award may be entered in any court having jurisdiction, or application may be made for judicial acceptance of the arbitration award or an order of enforcement, as may be the case.
D. Interim Relief. Nothing herein shall affect either Party’s right to apply to a court of appropriate jurisdiction for interim relief.
E. Service. The Parties hereto irrevocably agree to accept service of process by registered mail, postage prepaid, or by personal service of an officer or registered agent of the Party within or without the State of California, or in any other manner permitted by law.