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THESE TERMS OF PURCHASE GOVERN THE SALE OF
ALL PRODUCTS AND SERVICES ("PRODUCTS")
BY GIG AVENUE ("SELLER") AND APPLY NOTWITHSTANDING
ANY CONFLICTING, CONTRARY OR ADDITIONAL TERMS AND
CONDITIONS IN ANY PURCHASE ORDER OR OTHER DOCUMENT
OR COMMUNICATION ("PURCHASE ORDER") FROM
BUYER. THESE TERMS OF PURCHASE MAY ONLY BE
WAIVED OR MODIFIED IN A WRITTEN AGREEMENT SIGNED
BY AN AUTHORIZED REPRESENTATIVE OF SELLER. NEITHER
SELLER'S ACKNOWLEDGMENT OF A PURCHASE ORDER NOR SELLER'S
FAILURE TO OBJECT TO CONFLICTING, CONTRARY OR ADDITIONAL
TERMS AND CONDITIONS IN A PURCHASE ORDER SHALL BE
DEEMED AN ACCEPTANCE OF SUCH TERMS AND CONDITIONS
OR A WAIVER OF THE PROVISIONS HEREOF.
ORDERS. Orders shall be initiated
by Buyer issuing a Purchase Order or otherwise placing
an order by electronic means acceptable to Seller.
Orders shall identify the Products, unit quantities,
part numbers, descriptions, applicable prices and requested
delivery dates. All orders are subject to acceptance
by Seller. No orders for Products may be cancelled
or rescheduled without Seller's consent, which consent
may be given by Seller in its sole and absolute discretion.
PRICES AND PAYMENT. Prices shall
be as specified by Seller and shall be applicable for
the period specified in Seller's quote. If no period
is specified, prices shall be applicable for seven
(7) days. Notwithstanding the foregoing, prices shall
be subject to increase in the event of an increase
in Seller's costs or other circumstances beyond Seller's
reasonable control. Prices are exclusive of taxes,
impositions and other miscellaneous charges. If Seller
shall be liable for or shall pay any of the foregoing,
same shall be paid by Buyer to Seller in addition to
the price of the Products. The full purchase price,
including freight and taxes, is due at the time when
goods are ordered, unless Seller, in its sole discretion,
approves Buyer’s creditworthiness, in which case full
payment shall be due within thirty (30) days from date
of shipment 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. 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. Buyer shall pay
interest on any invoice not paid when due from the
due date to the date of payment at the rate of one
and one-half (1-1/2%) percent per month or such lower
rate as may be the maximum allowable by law. 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.
DELIVERY AND TITLE. All shipments
by Seller are FOB point of origin and all transportation
charges shall be paid by Buyer in addition to the price
of the Products. Delivery of the Products to the carrier
shall constitute delivery to Buyer and title and risk
of loss shall pass to Buyer upon delivery to the carrier.
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.
Seller reserves the right to make deliveries in installments.
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. All goods sold
by Seller shall be deemed accepted by Buyer at the
time of shipment. If Buyer notifies Seller, in
writing, and Seller confirms, in its sole discretion,
that goods received by Buyer are damaged, defective
or cannot be made operational at the time of delivery,
and if Buyer complies with the procedures governing
return of the goods set forth in these Terms of Purchase,
Seller shall credit Buyer’s account for the purchase
price of the goods upon return of the goods to the
Seller. 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.
RETURNS. Software products
cannot be returned. To return unopened products
other than software, Buyer must request a Return Merchandise
Authorization ("RMA") Number, which may be
issued by Seller in its sole discretion. All
products to be returned must be unopened, leaving the
manufacturer’s external seal intact. If a product
has been opened, Seller will have no obligation to
accept the return of such product. Returned Products
must be in original manufacturer's shipping cartons
complete with all packing materials. All Products for
return shall be returned freight prepaid in the manner
specified in the RMA. If returned Products are claimed
to be defective, a complete description of the nature
of the defect must be included with the returned Products.
Products not eligible for return shall be returned
to Buyer, freight collect. If Buyer receives
shipment of goods over the quantity ordered in the
Sales Contract, or an incorrect product, Buyer shall
notify Seller and return such goods with manufacturer’s
external seal intact within five days of Buyer’s receipt
thereof; otherwise Buyer will be responsible for the
purchase price of such goods. If the goods purchased
by Buyer constitute an upgrade, Buyer shall return
the original part or product in accordance with the
manufacturer’s requirements for return of the same. If
Buyer shall fail to return the original part within
thirty days of the date that the upgrade should have
been shipped, then Buyer shall not receive a credit
for the original part and shall pay the full purchase
price for the upgrade. Buyer is responsible for
freight on all returns and must be able to demonstrate
proof of delivery.
WARRANTY. In the case of all goods
sold hereunder, the only applicable warranties will
be provided by the manufacturers of such goods. Seller
shall assign to Buyer an warranty delivered to it by
the manufacturer of such product and such warranty
shall expressly be in lieu of any other warranty by
Seller. 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.
LIMITATION OF LIABILITY. BUYER SHALL
NOT IN ANY EVENT BE ENTITLED TO, AND SELLER SHALL NOT
BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES OF ANY KIND 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. 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.
GENERAL. No rights, duties, agreements
or obligations hereunder may be assigned or transferred
by either party, by operation of law, merger or otherwise,
without the prior written consent of the other. Any
attempted or purported assignment shall be void. Notwithstanding
the foregoing, Seller's obligations under these Terms
and Conditions may be performed by divisions, subsidiaries
or affiliates of Seller. The obligations, rights, terms
and conditions hereof shall be binding on the parties
hereto and their respective successors and assigns.
The waiver of any provision hereof or of any breach
or default hereunder shall not be deemed a waiver of
any other provision hereof or breach or default hereunder.
Any provision hereof which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining
provisions hereof in that jurisdiction or affecting
the validity or enforceability of such provision in
any other jurisdiction. These Terms and Conditions
shall be governed by and construed in accordance with
the laws of the State of California excluding any law
or principle which would apply the law of any other
jurisdiction. The United Nations Convention for the
International Sale of Goods shall not apply. In no
event shall Seller 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. 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
Last Revised January 21, 2009
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