Standard Terms and Conditions of Sale
STANDARD TERMS AND CONDITIONS OF SALE
By placing an order directly with Electronic Connector Company (“ECCO”) or on ECCO’s website, www.eccoconnectors.com, Buyer agrees to the following terms and conditions:
ACCEPTANCE AND CANCELLATION OF ORDERS
Each order for Seller’s Products is subject to acceptance in writing by a duly authorized agent of Seller; any written acknowledgement of receipt of an order shall not, in and of itself, constitute such acceptance. Orders accepted by Seller may be canceled by Buyer only upon written consent of Seller. In the event of cancellation or other withdrawal of an order for any reason and without limiting any other remedy which Seller may have as a result of such cancellation or other withdrawal, reasonable cancellation or restocking charges, which shall include all expenses then incurred by Seller, with consideration to any and all commitments made by Seller in their efforts to fulfill all or any portion of Buyer’s order, shall be paid by Buyer to Seller. Unless otherwise identified as a Stock Order by Seller, all orders processed by Seller are for custom, made-to-order Products not normally stocked and are therefore Non-Cancelable and Non-Refundable (“NCNR”).
All prices quoted and Products shipped are F.O.B. Seller’s facility. Title to and risk of loss of all Products shall pass to Buyer upon Seller’s delivery to parcel or freight carrier for shipment. Unless otherwise agreed by Seller in writing, Buyer shall pay all freight, handling, delivery, and insurance charges for the shipment of Products. Choice of carrier and shipping method and route shall be at the election of Seller unless specifically designated by Buyer. Seller will in good faith endeavor to ship by estimated shipping date. Seller shall not be liable for delays in delivery, or for failure to perform, due to causes beyond the reasonable control of Seller, which shall include, but not limited to; acts of God, acts of omissions by Buyer, civil or military disruption, fires, strikes, epidemics, quarantine restriction or other government directed restriction, flood, earthquakes, delays in transportation, or inability to obtain necessary labor, materials, or supplies. In the event of any delay, the contractual date of delivery, if any, shall be extended for a period equal to the time lost as a consequence of such delay without penalty to Seller. Unless otherwise specified by Seller, quantities are subject to Seller’s normal allowances. Such allowances in the case of wire and cable are plus 10% and minus 5% and for all other products are plus 0% and minus 5%. The purchase price will equal the unit price multiplied by the quantity shipped. Seller shall be entitled to refuse or to delay shipments upon failure by Buyer to pay promptly any payments due Seller, whether on this or any other contract between Seller and Buyer. Unless otherwise agreed to by Seller in writing, Seller shall have the right to deliver all Products covered hereby at one time or in portions from time to time within the time period for delivery provided in such order.
- Unless otherwise specified by Seller with written indication of agreed payment terms on Seller’s Invoice, payment in full or net amount owing, without offset or deduction, is due 30 days from date of invoice. If payment is not received within such 30-day period, a late payment of 1% per month of the unpaid balance or the maximum amount allowed by law, whichever is less, shall be paid by Buyer.
- All checks are accepted subject to collection, and Buyer agrees to pay all costs of collection, including reasonable attorney fees and costs. Any check received from Buyer may be applied by Seller against any obligation of Buyer to Seller under this or any other agreement, notwithstanding any statement appearing on or referring to such check. Acceptance of any partial payment shall not constitute a waiver of Sellers right to payment in full of all amounts owing from Buyer to Seller.
- Seller shall have the right to refuse to ship to Buyer on credit at any time and shipments made to Buyer on a C.O.D. or other basis shall be subject to the terms and conditions of sale contained herein. Seller shall retain a purchase money security interest (“PMSI”) in all Products sold to Buyer until the full purchase price therefor plus any late payment charges have been paid in full.
- Discount terms not applicable to credit card purchases.
INSPECTION AND ACCEPTANCE OF GOODS AND PRODUCT RETURNS
Inspection and acceptance of all Products shall be Buyer’s responsibility at point of receipt indicated by Buyer’s Ship-To Address. Buyer is deemed to have accepted all Products unless written notice of rejection is received by Seller within ten (10) calendar days after delivery of any Products. Notwithstanding the foregoing, any use of any Products by Buyer, its officers, employees, agents, contractors, assigns, customers, or in any other manner will constitute acceptance of those Products by Buyer. Buyer waives any right to revoke acceptance thereafter. Buyer shall report any discrepancy in shipment quantity or damage, and any claim for defective or non-compliant materials within ten (10) days after delivery. No return of Products shall be accepted by Seller without a Return Material Authorization (“RMA”) Number, which may be issued by Seller in its sole discretion. When a Buyer returns Products to Seller, subsequent to receipt of an authorized RMA Number, the Buyer certifies that the Products were purchased from Seller and there has been no substitution in whole or in part of same Products from another supplier, distributor, or any other source of the Products. Only Products originally shipped from Seller or from a supplier at Seller’s direction (drop ship) may be returned to Seller. Returned Products must be in original manufacturer’s shipping cartons and interior packaging, 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. Notwithstanding the foregoing, Buyer must include all applicable portions from any applicable military specification and/or all applicable portions from any previously agreed upon specification that provides objective evidence as to the claim for rejected Product. Any agreement to a specification must be evidenced by prior written approval from Seller’s Quality Manager. Products not eligible for return shall be returned to Buyer, freight collect.
SELLERS RIGHT TO INCREASE PRICES
Unless otherwise specified on the face of this agreement, Seller reserves the right to increase the selling price of any and all Products ordered by Buyer but not yet shipped to Buyer from Seller’s place of business due to an increase in Seller’s cost of such Products by Seller’s Supplier. The selling price quoted to Buyer shall, upon an increase in price by Seller’s supplier, be increased by the same percentage of increase in Seller’s costs for the Products, and Buyer agrees to pay any such increased price in accordance with the terms hereof.
Seller’s prices do not include sales, use, excise, or similar taxes. Accordingly, Buyer shall in addition to prices specified by Seller, pay any sales, use, excise, or similar tax attributable to the sale of Products covered hereby, or, in lieu thereof, provide Seller with tax exemption certificates acceptable to any applicable taxing authorities.
WARRANTIES AND LIMITATIONS OF REMEDIES
Seller warrants to Buyer that the Products at the time of shipment will be free from defects of material and workmanship as defined by the original manufacturer and will be in accordance with original manufacturer specifications or otherwise specifically agreed to in writing by both parties hereto. Seller passes on to Buyer the warranties made to Seller by its suppliers. The length of the warranty period will be the length established by the original manufacturer of the Product. Buyer shall proceed directly against such supplier at Seller’s request. Buyer will promptly notify Seller in writing of any defect in the Products received. Seller’s sole obligation under these warranties will be limited to either, at Seller’s sole option and expense, repairing or furnishing replacement Product F.O.B. first point of shipment; or, refunding the purchase price paid by Buyer to Seller without interest or any additional financial consideration, for the Products thereof which Seller reasonably determines do not conform with these warranties, and Buyer’s exclusive remedy for breach of any such warranties will be enforcement of such obligation of Seller. In no event shall Seller be liable for indirect, special, or consequential damages of any nature, including, but not limited to, personal injury or property damage. Buyer’s recovery from Seller for any claim shall not exceed the purchase price paid by Buyer for the Products, irrespective of the nature of the claim, whether in warranty, contract, or otherwise. All claims for shortage shall be submitted in writing to Seller within ten (10) days from date material is received by Buyer, otherwise any such claims shall be waived. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE, AND OF ANY OTHER TYPE, WHETHER EXPRESS OR IMPLIED.
Seller makes no representations that any Products sold to Buyer are free of the rightful claim of any third person by way of infringement, or of infringement of patent or trademark or the like and disclaims any warranty against infringement with respect to any Products. Buyer agrees to look solely to the manufacturer or licensor of the Products with respect to any claim of infringement. Furthermore, Buyer agrees to protect, defend, indemnify and hold harmless Seller from all sums, costs, expenses and attorney fees which Seller may incur or be otherwise obligated to pay as a result of any and all claims and demands, causes of action or judgments arising out of or relating to any use, modification or enhancement of the Products purchased by Buyer unless such use, modification, or enhancement is approved in writing by the manufacturer or licensor of the Products.
Buyer shall be solely responsible for the installation and operation of the Products covered hereby, including without limitation the obtaining of all permits, licenses, or certificates required for the installation of such Products.
USE OF PRODUCTS IN LIFE SUPPORT APPLICATIONS
Products sold by Seller are not authorized to be used in life support equipment or for applications in which the failure or malfunction of the Products would create a situation in which personal injury or death could occur, regardless of the likelihood of such event. Any such use or sale of Products sold by Seller to Buyer is at the sole risk of Buyer, and Buyer agrees to indemnify and defend Seller against and hold Seller harmless from all damages, costs, and expenses, including without limitation attorney fees and costs relating to any lawsuit or threatened lawsuit, arising out of such use or sale.
TECHNICAL ADVICE AND DATA
- Any technical advice offered by Seller or given in connection with the use of any Products is an accommodation to Buyer without charge and Seller shall have no responsibility or liability whatsoever for the content or use of such advice. Without Seller’s prior written consent, Buyer shall not use, duplicate, or disclose any technical data delivered or disclosed by Seller to Buyer for any purposes other than for installation, operation, or maintenance of Products purchased by Buyer and any such acceptance or application of said advice is done so at Buyer’s sole risk and discretion.
- Any use made of Seller’s import or export classifications, whether it be Export Control Classification Numbers (“ECCNs”), any variation of Harmonized Tariff codes (“HTS”), or any other import or export classification is made without recourse to Seller and at the Buyer’s risk. All such classifications are subject to interpretation and change based on Product application, modification, government reclassification, and other factors. Buyers intending to export or re-export Products purchased from Seller are the exporter of record, and wholly responsible for determining the correct classification of any Product at the time of export. Any import or export classification provided by ECCO is for ECCO’s internal use only and shall not be construed as a representation or warranty regarding the proper export classification nor relied upon to make licensing determinations.
In the event of any default by Buyer, Buyer shall pay all costs incurred by Seller in collecting any amounts due to Seller by Buyer, including reasonable attorney fees and costs. The waiver by Seller of any breach hereof or default in any payment shall not be deemed to constitute a waiver of any succeeding breach or default. In the event of default, Seller shall have all remedies provided under the Uniform Commercial Code which shall be cumulative with one another and with any other remedies which Seller may have at law, in equity, under any agreement of any type or, without limitation, otherwise. The exercise or failure to exercise any remedy shall not preclude the exercise of that remedy at another time or any other remedy at any time. No action, regardless of form, arising out of, or in any way connected with, the Products furnished or services rendered by Seller, may be brought by Buyer more than one year after cause of action has accrued.
INTEGRATION AND ASSIGNMENT
This agreement sets forth the sole and entire agreement between the parties with regard to the subject matter hereof and supersedes any and all prior or contemporaneous oral or written agreements between them regarding the same. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any term used in this agreement. Acceptance or acquiescence in a course of performance rendered under this agreement shall not be relevant to determine the meaning of this agreement even though the accepting or acquiescing party had knowledge of the nature or the performance of an opportunity for objection. No subsequent alteration of this agreement whatsoever will be binding upon Seller unless reduced to writing and signed by both Seller and Buyer. No agent, employee or representative of the Seller has any authority to bind the Seller to any affirmation, representation or warranty covering the materials sold under this agreement, and unless an affirmation, representation, or warranty made by agent employee or representative is specifically included within this agreement, it has not formed a part of the agreement and shall not in any way be enforceable against the Seller. Any assignment of this agreement or any rights hereunder by Buyer shall be void without Seller’s written consent.
BUYER’S TERMS AND CONDITIONS
Seller desires to provide its customers with prompt and efficient service. Accordingly, Products furnished and services rendered by Seller are sold only on Seller’s Terms and Conditions stated herein. Seller’s Terms and Conditions are not subject to any additional or different terms of the Buyer and Buyer’s acceptance is limited to Seller’s Terms and Conditions herein. Any conflicting statement or terms listed on the Buyer purchase orders, invoice, confirmations, or other buyer generated documents (“Buyer Documents”) whether heretofore or hereafter submitted are negated and rejected by Seller’s Terms and Conditions herein, and all different or additional terms and conditions contained in any Buyer Documents are hereby deemed to be material alterations and notice of objection to and rejection of such terms is hereby given. Seller’s failure to object to any document, communication or act of customer will not be deemed a waiver of any of these terms and conditions. Seller’s performance of any contract is expressly made conditional on Buyer’s agreement to Seller’s Terms and Conditions of Sale, unless otherwise specifically agreed to in writing by Seller. In the absence of such agreement, commencement of performance and/or delivery shall be for Buyer’s convenience only and shall not be deemed or construed to be acceptance of Buyer’s terms and conditions. If a contract is not earlier formed by mutual agreement in writing, acceptance of any Products or services shall be deemed as acceptance of the terms and conditions stated herein.
This agreement and performance by the parties hereunder shall be construed in accordance with the laws of the State of Illinois. The parties expressly exclude the applicability of the United Nations International Sale of Products. All agreements, covenants, conditions, and provisions contained herein shall apply to and bind the assignees and successors in interest of Buyer. If any provision or portion of this agreement is held to be invalid, illegal, unconscionable, or unenforceable, the other provisions and portions hereof shall not be affected. Buyer warrants and represents to Seller that all Products shall be purchased for Buyer’s business or commercial use and not for Buyer’s personal, family, or household purposes.