COMMUNICATION POWER SOLUTIONS, INC.
dba: DBSS (Dynamic Battery Sales and Service)
STANDARD SALES TERMS AND CONDITIONS
1. ACCEPTANCE: Unless otherwise agreed to in writing, it is agreed that sales are made on the terms and conditions herein, and to the extent of any conflict, these terms and conditions shall take precedence over Buyer's terms and conditions. In the absence of written acceptance of these terms by Buyer, Buyer's giving of instructions for work or delivery or acceptance of or payment for product covered hereby constitutes an acceptance of these terms. All orders are received subject to review and acceptance in writing by Seller at 6100 S. Maple Ave. , Suite #116, Tempe, Arizona 85283 USA, hereon called "Seller's facility".
2. DELIVERY: All deliveries are FOB Seller's facility unless agreed otherwise. Delivery dates are best estimates only, are not guaranteed and do not form a term of this contract unless specific delivery dates are specified and agreed to. Delivery delay or default in any installment does not relieve Buyer of its obligation to accept and pay for remaining deliveries. Claims for shipment shortage are waived unless presented to Seller in writing within forty-five (45) days of delivery of each shipment. IN NO EVENT SHALL SELLER BE LIABLE FOR INCREASED MANUFACTURING COST, LOSS IN PROFITS OR GOOD WILL OR ANY OTHER INCIDENTAL, CONSEQUENTIAL, SPECIAL OR OTHER DAMAGES OR LOSSES.
3. RESPONSIBILITY AND TITLE: Title to and risk of loss and damage of product sold hereunder shall pass to Buyer FOB the Seller's Facility in Arizona. Seller hereby retains a security interest and right of possession in the article until Buyer makes full payment.
4. WARRANTY: Seller warrants that any product sold or otherwise made available to Buyer hereunder which is manufactured by Seller will, at the time of shipment, be free and clear of all liens and encumbrances, will be free from defects in material and workmanship, and will conform to Seller's applicable specifications or, if appropriate, to Buyer's specifications accepted by Seller in writing. If any product supplied hereunder which is manufactured by Seller is not as warranted, Seller shall, at its option, refund the CIF cost, repair or replace the product, provided proof of purchase and written notice of non conformance are received by Seller within one (1) year from the date of delivery and provided said non-conforming product is returned FOB to a service facility designated by Seller, no later than thirty (30) days after the expiration of the warranty period.
A Non-Seller manufactured product is subject to the warranty provided by its manufacturer, if any. Seller will pass these warranties to Buyer and inform Buyer of the nonexistence of any warranty. Upon verification by Seller that the product does not conform to this warranty, Seller will reimburse Buyer for the cost of transporting the product to and from the designated service facility. This warranty does not apply to a product not in its original condition or which Seller determines has been, by Buyer or otherwise, subjected to testing for other than specified electrical characteristics, to operating and/or environmental conditions in excess of the maximum values established in applicable specifications or has been the subject of mishandling, misuse, neglect, improper testing, repair, alteration, damage, assembly or processing that alters physical or electrical properties.
THIS WARRANTY EXTENDS TO BUYER ONLY AND MAY BE INVOKED BY BUYER ONLY ON BEHALF OF ITS CUSTOMERS. SELLER SHALL NOT ACCEPT WARRANTY RETURNS DIRECTLY FROM BUYER'S CUSTOMERS OR USERS OF BUYER'S PRODUCTS. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS OR REPRESENTATIONS WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS, ALL OF WHICH ARE HEREBY EXPRESSLY EXCLUDED. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE IN CONTRACT OR OTHERWISE FOR ANY DAMAGES, WHETHER INCIDENTAL, CONSEQUENTIAL, GENERAL, SPECIAL OR OTHER, OR FOR ANY OTHER REMEDY ARISING FROM ANY LOSS, DAMAGE, EXPENSE OR INJURY SUSTAINED FROM OR IN CONNECTION WITH THE SALE, INSTALLATION, USE OR FAILURE OF THE PRODUCT SOLD OR ANY DEFECT THEREIN OR FROM ANY OTHER CAUSE. BUYER'S REMEDY, IF ANY, SHALL BE STRICTLY LIMITED TO THE TERMS OF THIS ARTICLE 4.
5. PATENT AND COPYRIGHT INDEMNIFICATION.
a. Seller shall indemnify and defend Buyer against all lawsuits, and any liability and expense arising therefrom, on account of alleged infringement of an U.S. patent or copyright resulting from or arising in connection with the sale, normal use or other normal disposition of any product furnished hereunder, provided that Seller is notified promptly in writing by Buyer of any lawsuit for infringement and at Seller's request and at its expense is given control of such suit, and any assistance which it may request for defense of same.
b. The sale of a product furnished hereunder conveys no license by implication, estoppel, or otherwise under any proprietary or patent right of Seller covering any combination of the product with other elements. Where this quotation or contract involves manufacture from drawings or specifications provided by Buyer to Seller, Seller shall be indemnified by Buyer against a claim or action, and any costs arising therefrom, which might be brought by a third party with respect to infringement of patent or proprietary rights of that third party.
c. THE FOREGOING STATES THE ENTIRE LIABILITY OF SELLER FOR PATENT OR COPYRIGHT INFRINGEMENT.
6. PRICES AND PAYMENT: All prices shall be invoiced in U.S. dollars at the time of shipment and paid in full in U.S. dollars at Seller's facilities, or Seller's bank if so directed.
Export sales will normally be paid by Letter of Credit (L/C), confirmed by a major U.S. bank, payable at sight upon presentation of documents to the bank, and all costs of the L/C are to be paid by the Buyer. We request that all L/C s be drawn as transferable, the total amount defined by the term ABOUT (not by the term NOT EXCEEDING ) and that quantities also be described by the term ABOUT . Documents to be payable when items are picked up by common carrier and consigned to Buyer or Buyer's agent.
If shipments are made in installments, each installment is separately invoiced and paid for when due without regard to other shipments. Seller reserves the right at any time to revoke credit extended to Buyer, because of Buyer s failure to pay for products when due or for any other reason deemed good and sufficient by Seller, and in such event, all subsequent shipments shall be paid for by Letter of Credit. All orders are accepted based on a Proforma Invoice.
Domestic sales will normally be on an open credit for customers establishing suitable credit with the Seller. Purchaser's unable to establish credit with the seller can prepay the order or accept shipments on a COD basis. Credit card transactions may be subject to reasonable fees.
7. TAXES: Prices are exclusive of all taxes, duties or other such imposts. All taxes (including, but not limited to, income, withholding, sales, use, registration, ad valorem, excise, employment and documentary taxes), duties, excise or other charges imposed by governmental or quasi-governmental bodies, other than Seller's United States income taxes thereon, assessable on a product sold or furnished hereunder are borne by Buyer after delivery to the FOB point. All taxes outside the U.S.A. are the responsibility of the Buyer.
8. CANCELLATION OR TERMINATION.
a. Buyer shall not cancel or purport to cancel or terminate the order or any part of it, because of an alleged default unless and until Seller has failed to correct such alleged default within thirty (30) days after receipt by Seller of a written notice specifying the default.
b. Buyer may cancel or terminate this order, other than as provided above, only upon payment of all Seller's costs incurred for and reasonably allocated by Seller to the canceled or terminated portion of the work in accordance with generally accepted accounting principles and practices, plus a reasonable profit on such costs. If the cancellation or termination by the Buyer includes custom produced product that cannot be reasonably sold to other buyers, such costs shall equal the order prices for the total number of units produced or purchased as of the date of the cancellation or termination. Unless otherwise agreed and confirmed in writing, product scheduled for shipment is subject to no revision, reschedule, cancellation or termination within thirty (30) days prior to shipment.
9. DEFAULT: If Buyer defaults in any payment, becomes subject to the bankruptcy laws, executes an assignment for the benefit of its creditors, enters into voluntary or compulsory liquidation or suffers a receiver to be appointed or any execution to be levied on its goods and assets, Seller may at its option (without prejudice to other remedies) cancel an undelivered or uncompleted portion of an order, and stop any goods in transit. In the event that Seller exercises its right to stop a product in transit, Seller may at its option resell such product at public or private sale without notice to Buyer and without affecting Seller's rights to hold Buyer liable for any loss or damage caused by Buyer's default.
10. FORCE MAJUERE: Seller shall not be liable for a delay in or failure to perform its obligations here under if the delay or failure is due to causes beyond Seller's control. Such causes may include, but are not limited to: an act of God or of the public enemy; an act of the Buyer or its agent, employee, subcontractor or supplier; an act of any national or local government; fire; flood; epidemic; quarantine restriction; strike; lockout; riot; insurrection; war; freight embargo; unusually severe weather; inability to obtain material; and other similar or dissimilar causes beyond Seller's control. Seller will notify the buyer of such causes when they occur. If Seller is unable to perform or complete performance of this order wholly or in part due to causes beyond its control, Seller may cancel this order or the outstanding part thereof without further liability to Seller.
11. EXPORT: Buyer agrees that it shall not in any form re export, resell, ship or divert or cause to re export, resell, ship or divert, directly or indirectly, any product or technical data or direct product thereof sold or otherwise furnished here under to any country in violation of applicable export policies of the United States Government.
12. CHANGES: Buyer may make no changes within the general scope of this contract in the drawings, designs or specifications or method of shipment or terms of a letter of Credit or packing hereunder without Seller's written consent subject to price, delivery and other necessary adjustments.
13. CONFIDENTIAL INFORMATION: All drawings, diagrams, software, specifications and other materials furnished by Seller and identified as confidential relating to the use and service of a product furnished hereunder and the information therein are proprietary to Seller. Such materials have been developed at great expense and may contain trade secrets of Seller. Buyer may not reproduce or distribute such materials except to Buyer's employees who may use the product as part of their duties and on the basis that all such materials (with copies) shall be returned to Buyer by the employee on termination of his employment. All such materials supplied directly by Seller relating to the product, (except information as may be established to be in Buyer's possession prior to Seller's disclosure to Buyer, in the public domain or disclosed pursuant to judicial or government action) shall be received in confidence and Buyer shall hold such information in confidence.
14. LIMITATION OF LIABILITY: No action shall be brought for any breach of this order for more than one (1) year after the accrual of such cause of action. Buyer's sole remedy is to request Seller, at Seller's option, to either refund the relevant amount of the C.I.F. cost, repair or replace any product that is not as warranted. IN NO EVENT WILL SELLER BE LIABLE FOR ANY OTHER DAMAGES OR LOSSES WHETHER INCIDENTAL, CONSEQUENTIAL, GENERAL, SPECIAL OR OTHERWISE.
15. GENERAL: Buyer acknowledges that he has read and understands these Terms and Conditions, and agrees to be bound by them, that it is the complete and exclusive statement of the agreement between the parties and supersedes all proposals, oral and written, Buyer's terms and conditions or purchase as laid down in Buyer's purchase order, if any, and all other communications between the parties relating to the product ordered hereunder. Modification of the terms and conditions for specific orders will be accomplished by agreeing to a modified version of the Terms and Conditions that embodies the special changes for a specific order. No waiver of a breach or a provision of these Terms and Conditions shall constitute a waiver of any other breach or provision. If any part of these Terms and Conditions is declared null and void, the remaining portions shall remain in full force and effect.
Seller agrees that any Letter of Credit (L/C) utilized for transactions under these Terms and Conditions will be subject to the Uniform Customs and Practice for Documentary Credits (1983 Revision, International Chamber of Commerce, Paris, France, Publication number 400).
16 GOVERNING LAW. These Terms and Conditions shall be governed and construed in all respects according to the laws of Arizona, United States of America.
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