UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING, ALL SALES AND POTENTIAL SALES ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
Applies to Automotive Electrical Online LLC (Seller) and subsidiaries, including but not limited to Wring Harness Restoration, (“Seller”) and Buyer and/or Potential Buyer (Buyer)
1) The goods that are the subject of a sale by Seller to Buyer are referred to as the “Products,” the services sold by Seller to Buyer are referred to as the “Services,” and items of tangible property on which Seller performs Services or that result from Services are referred to as the “Service Items.” All sales of Products or Services by Seller are governed by and subject to (a) Seller’s email quotation, order acknowledgement, or a separate written agreement signed by an authorized representative of Seller, as applicable, and (b) these terms and conditions, whether or not they are specifically referenced in or incorporated by Seller’s email quotation, order acknowledgement, or the separate written and signed agreement. Any irreconcilable conflict between these terms and conditions and any terms in Seller’s email quotation, order acknowledgement, or the separate written and signed agreement shall be resolved in favor of the email quotation, order acknowledgement, or the separate written and signed agreement, at the sole discretion of Seller. Seller’s acceptance of Buyer’s purchase order or commencement of performance shall not constitute acceptance of any of Buyer’s terms and conditions. TERMS ADDITIONAL TO OR DIFFERENT FROM THESE TERMS AND CONDITIONS, INCLUDING BUT NOT LIMITED TO TERMS CONTAINED IN BUYER’S PURCHASE ORDER OR BUYER’S STANDARD TERMS AND CONDITIONS OF PURCHASE, ARE DEEMED MATERIAL AND HEREBY REJECTED UNLESS OTHERWISE ACCEPTED BY SELLER IN WRITING.
2) All communication between Seller and Buyer or Potential Buyer is recorded, applies to verbal as well as written. Buyer and/or Potential Buyer understand that all communication is property of Seller and to be used for training purposes or as Seller sees fit, at Sellers discretion. Buyer or Potential Buyer waives any rights granted by individual states regarding recorded phone calls.
3) Buyer’s assent to these terms and conditions shall be conclusively presumed from Buyer’s Payment of Seller’s electronic invoice. Seller may commence performance in reliance upon Buyer’s acceptance of these terms and conditions, and Seller will not be obligated to fulfill an order or request for the Products or Services unless Seller affirmatively acknowledges the order. BUYER AND SELLER AGREE THAT THESE TERMS AND CONDITIONS ARE ACCEPTED IN GOOD FAITH BY BOTH PARTIES AS THE CONTROLLING AND FINAL TERMS AND CONDITIONS.
4) Except as otherwise agreed to by Seller in writing, the terms and conditions set forth herein, together with Seller’s email quotation, order acknowledgement, or a separate written and signed agreement, as applicable, shall constitute the complete and final agreement between Seller and Buyer (hereinafter, this “Agreement”), superseding completely any prior oral or written communications.
5) No modification of this Agreement or waiver of any of its terms will be binding on Seller unless clearly expressed in writing and signed by an authorized representative of Seller. This paragraph excludes, among other things, purported modifications and waivers by oral agreement, course of performance, and usage of trade. Seller and Buyer expressly agree that Seller may modify these terms and conditions from time to time, without notice, warning, or prior consent. Changes may be to agreement hosting site and may apply to open order, and such modifications shall be binding upon Buyer.
6) Seller is not responsible for individual states law, the legality of the product or service purchased by Buyer is sole responsibility of the Buyer to verify that purchased products and services are legal to install and use in customers state. Seller in no way makes any claim regarding federal and state emissions law, carb regulations, coastguard regulations, or any other applicable law. Some product that Seller offers are considered off-road use only, when not allowed for use on State and/or Federal roadways by State and/or Federal laws.
7) Seller is not an importer or exporter. Seller offers products and rebuild/repair service on an individual, per item bases and does not work in bulk orders. Seller will not accept any order valued more than $2499.00. Seller does not supply shipper or importer number. Seller does not buy core, scrap, or salvage parts from outside the US.
8) Items sent in for repair are sent at Buyer’s or potential Buyer’s expense and risk, full shipping insurance is recommend by Seller. Potential Buyer will be responsible for return shipping, if Potential Buyer does not accept Seller’s email quotation, order acknowledgement, or separate written agreement signed by an authorized representative of Seller. In the event that the Seller issues a credit against the sale of Buyer or Potential Buyer’s goods, and the Buyer does not complete transaction with Seller, said credit shall be forfeited to Seller.
9) In the event that Potential Buyer sends to Seller an item for rebuild, restoration, or repair, and the Seller has provided the Potential Buyer an email quotation, order acknowledgement, or separate written agreement signed by an authorized representative of Seller, and the Potential Buyer has not responded to the Seller, within fifteen (15) days, the item will be considered abandoned. After thirty (30) days with no communication from the Potential Buyer, Seller will charge $20 per day storage fee. Said fee will be retroactive to the last date of Potential Buyer’s communication with Seller. Said charge will be assessed on Potential Buyer’s indicated payment method or billed to Potential Buyer at Sellers discretion. Seller will not commence on Buyers product or order until payment has been paid, deposit or in full at Seller’s discretion.
10) Expedited, (Rush) orders must be requested in writing and are at an additional charge, it does not indicate faster shipping service. “Next day”, “2-Day” “Priority”, and/or similar shipping need to purchase at Buyer’s expense. A rush order will not move “Rushed” to the front of the line, Seller will use “A” grade connector pins, and/or expedite and parts order, when possible. A rush order is not provided with a guarantee of ship date.
11) Buyer understands that Seller does not provide weekly, monthly or any other period or updates on order, Buyer is encouraged to contact Seller if Buyer has a question or desires an update, and this should be in the form of an email.
12) Buyer understands and acknowledges that ordered in Products for rebuild or restoration (core) products, such as alternator or wiring harness are sold in as-is condition unless a full rebuild has been ordered on said product.
13) Delivery dates are approximate. The failure to meet an indicated delivery date will not constitute a breach of this Agreement. In no event shall Seller be liable for any claims for labor or for any special, indirect, incidental, or consequential damages including, but not limited to, demurrage charges, cost of shipment, downtime, lost profits (whether direct or indirect), lost sales, or any other damages resulting from delay in delivery. If Seller’s production or delivery is delayed, Seller may allocate production and delivery among its customers in a manner it deems reasonable. Seller reserves the right to change or redesignate any product source listed in this Agreement. There is no guaranteed time limit on custom work, estimates are given for rotating electrical but will not ship until they are pass our quality control testing. All estimates on wiring harnesses rebuilds are generalized estimates based on past harness build time. There is no way to give an exact or approximate time to completion because each harness is different and new or reclaim pins may need to be cleaned and processed prior to install. Rebuilt or manufactured harnesses will not ship unit they have passed our quality control testing. ACCEPTANCE OF THE PRODUCTS OR SERVICE ITEMS BY BUYER UPON DELIVERY SHALL CONSTITUTE A WAIVER BY BUYER OF ANY CLAIM FOR DAMAGES BECAUSE of DELAY IN DELIVERY OR PERFORMANCE.
14) All deliveries are, unless otherwise agreed in writing, in Seller’s sole discretion, select the shipping method, the carrier and the applicable freight charges. Buyer shall indemnify and hold harmless Seller from and against any claims, damages or liabilities suffered by Seller resulting from any acts or omissions of carrier. Title to the Products and risk of loss to the Products and Service Items shall pass to the Buyer at the point of shipment from Seller’s facility, whether freight prepaid or freight collect to destination, regardless of which party selects the carrier and arranges the freight charges or particulars of shipment. Risk of loss for damage or delay in transit shall be borne by Buyer. Buyer shall file and pursue any claims directly with the carrier related to loss, damage or delay in transit, and Buyer shall not assert such claims against Seller.
15) In the event that Seller agrees to pay for shipping it is understood and acknowledged by Buyer that shipping will be “Ground Rate” and only applicable to continental US only. Buyer will be responsible for additional chargers for shipping outside the continental US. Buyer understands and acknowledges that shipments paid for by Seller in which Seller, at Seller’s discretion, pays for shipping insurance, shipment will be insured for average repair costs that may occur during shipping. Seller recommends that Buyer purchase additional insurance for full replacement if damage or lost.
16) Buyer must pay for the Products or Service Items within ten (10) days after accepting Sellers quote. After such 10-day period, Buyer will pay a holding charge determined in good faith by Seller and/or Seller may charge monthly storage fee. Buyer agrees to pay for Products or Service in said ten day and to pay the applicable price. Seller has the right to sell or scrap any Products without notice to Buyer if Buyer has not paid the Products for shipment within thirty (30) days after Buyer agrees to quote and Buyer shall be responsible for any difference between the agreed the cost of work to that point, if deposit was paid, and the sale price or the scrap allowance.
17) Seller offers a payment plan, two options of the payment plan are offered, this differs from a deposit to start work on the Buyers product of service, regardless of if sent in by Buyer or supplied by Seller. In both options Buyer will pay a non-refundable deposit, this will be known as “banking funds”, this starts work on Buyers product or service, this includes but is not limited to ordering in parts. In both options, Seller will stop work on Buyers order when the “banked funds” have been depleted, this work will not continue until the Buyer has supplied Seller with additional “banked funds”. In payment option one (1) Buyer will be sent up, with an automated invoice system, Buyer will indicate what day(s) of the month they desire the invoice to be sent along with the invoice dollar amount. Buyer will be required to notify the Seller if Buyer is not able to make a payment. In payment option two (2), Buyer will email Seller, when Buyer desires an invoice to be sent and the dollar amount of the invoice. With both Payment options, Seller will add a convenience charge of 4% to each payment after the initial payment, Buyer has the option to pay with the invoice or add the 4% fee to the total owing on the order. Seller recommends at least one payment per month, Seller requires an email each month notifying Seller if Buyer is not going to make a payment. In both payment options, after 60 days with no communication or payment from Buyer the Seller will consider the order abandoned. There are no interest charges assessed by Seller on the payment program. Buyer’s credit worthiness is not a consideration and Seller will not conduct a credit check on Buyer.
18) Abandoned orders are any order in which Buyer pays a deposit to start work, and is not in Seller’s payment plan, and Buyer defaults on any payment. in the event of an abandoned order, Buyer will be given a one (1) week grace period, after notification is sent to Buyers email address, before Seller will charge Buyer for the balance of the work required to finish Buyer’s item, the required work will be finished and at that point returned to the Buyers last known shipping address, if paid. If Buyer’s credit card declined Buyer’s item will be sold as scrap to cover Seller’s costs of storage. Further legal action may be required for Seller to recover storage and losses. To avoid this Buyer is encouraged to stay in communication with and respond to Seller’s emails or calls.
19) Buyer Delay/Cancellation Costs include all labor, materials, overhead, general and administrative costs, restocking charges, surcharges levied on material by outside suppliers, sub-vendor cancellation charges, excess inventory charges, value of storage space, inventory tax charges, banking and finance charges, scrapping and disposal fees, and other harm, costs and charges incurred directly or indirectly by Seller in connection with a delay or cancellation of an order for the Products or Services. The “Firm Order Period” is determined according to, as applicable, the email quotation, order acknowledgement or separate written and signed agreement. If there is no email quotation, order acknowledgement or separate written and signed agreement, or if none of those items specifies the Firm Order Period, the Firm Order Period will be determined according to Seller’s then current cancellation and order book management policy. If a Firm Order Period cannot be determined in any of the preceding methods, the entire order will be considered to be within the Firm Order Period. Buyer is not entitled, without Seller’s prior written consent, which may be withheld or conditioned in Seller’s sole discretion, to cancel or delay a delivery of the Products or Services for all or any part of an order within the Firm Order Period. Seller may treat as a cancellation any proposed delay greater than 30 days. If Seller consents to the cancellation or delay, Buyer shall pay a cancellation or delay charge in an amount determined in Seller’s sole discretion to reflect all applicable Delay/Cancellation Costs, including, at a minimum, a storage charge, inventory carrying costs, financing costs associated with the finished Products or Service Items, work in process and raw materials, and costs of inactive labor, from the original request date until the time of delivery or performance. In the case of cancellation, the charge may also include, at Seller’s sole discretion, a reasonable and equitable profit for Seller. If Seller’s work on an order requires material from Buyer or a third party selected by Buyer, and Seller does not timely receive material that strictly conforms to Seller’s requirements, including chemical composition, physical properties and dimensions, Seller may delay performance of or cancel the order without liability, and Buyer shall compensate Seller for all Delay/Cancellation Costs, including for costs incurred and time expended working on non-conforming material.
20) Buyer understand and acknowledges that custom and vehicle specific orders, such as wiring harness and rotating automotive electrical can take some time to resale therefore such orders can’t be canceled, sales are consider final and binding. At Sellers discretion, orders can be held in consignment and sold on behalf of Buyer. Buyer understands and acknowledges that all sales are final and there are no cash refunds. Seller will issue refund for store credit only upon approval and at Seller’s discretion.
21) The material specifications, quality requirements, or any other aspect of the Products and the Service Items or their manufacture (the “Product Specifications”) is controlled by Seller’s email quotation, order acknowledgement, or separate written and signed agreement. If any of the Product Specifications in Seller’s email quotation, order acknowledgement, or separate written and signed agreement differ materially from the Product Specifications requested by Buyer, Seller may, in its sole discretion, require that Buyer provide a written acknowledgment and acceptance of the Product Specifications in Seller’s quotation, order acknowledgement, or separate written and signed agreement prior to the manufacture or delivery of the Products or Service Items. Buyer is not entitled, without Seller’s prior written consent, which may be granted or withheld in Seller’s sole discretion, to make any changes to Product Specifications in Seller’s email quotation, order acknowledgement, or separate written and signed agreement. If Seller consents to the change, Seller may condition its consent on Buyer’s agreement to price adjustments and other compensating payments satisfactory to Seller. In addition to all other remedies available to it under applicable law, Seller may refuse to comply with any change to which Seller has not given its prior written consent.
22) If this Agreement concerns Products or Service Items for original equipment production, (a) Seller is not required to supply for the “life-of-program,” but instead only for the time specified in this Agreement or, if no time is specified, at Seller’s sole discretion, and (b) Seller is not required to supply service parts. Seller is only required to supply service parts if Buyer advises Seller of those requirements, complete with a detailed release schedule, and Seller agrees in writing to supply the service parts.
23) If Buyer is purchasing the Products or Services for a government contract or sub-contract, Buyer shall promptly notify Seller of that fact and of any contractual terms from the government procurement laws and regulations that Buyer is obligated to include in its contracts for such Products or Services. No government procurement provisions will be included in this Agreement unless agreed to in a writing signed by an authorized representative of Seller.
24) The purchase price of the Products or Services shall be as stated in Seller’s email quotation, order acknowledgement, or separate written agreement signed by an authorized representative of Seller, as applicable. Unless agreed by Seller in writing, the purchase price does not include shipment costs unless otherwise stated. If the Products or Service Items are shipped freight prepaid, the charge for freight shall be added to the invoice. Prices are based on and assume Buyer’s compliance with all of the terms and conditions of this Agreement, including a promise by Buyer to purchase a particular mix of goods, a certain quantity of goods, or a certain percentage of Buyer’s requirements for the goods. Seller may adjust prices, in its sole discretion, if the circumstances do not coincide with the forgoing assumptions. In addition, Seller may at any time adjust prices based on changes to energy costs, raw material costs, labor costs and exchange rates In the event that Seller’s product is mistakenly listed on line, at an incorrect price. Seller reserves the right to refuse or cancel any orders placed for product listed at the incorrect price. Seller reserves the right to refuse or cancel any such orders whether or not the order has been confirmed and credit card charged. If credit card has been charged for the purchase and order is cancelled, Seller shall issue a credit to Buyer’s credit card account in the amount of the incorrect or total sale price as Seller deems necessary.
25) Payment terms are pre-pay or net 10 days (open accounts), with no discount allowed on transportation charges. Interest will accrue on invoices unpaid after the net due date at the annual rate of 12% or the maximum legal contract interest rate, whichever is less. Open accounts require preapproval and are at discretion of Seller
26) For purchases made pursuant to a separate written agreement signed by an authorized representative of Seller, if Seller announces a surcharge, such surcharge shall become effective for the Products or Service Items scheduled for shipment beginning on the date set forth in Seller’s announcement of such surcharge or, if there is no such date, immediately upon such announcement. For all other purchases, including, but not limited to, spot purchases: (i) if Seller announces a general price increase, such price increase shall become effective for the Products or Service Items scheduled for shipment beginning on the date set forth in Seller’s announcement of such price increase or, if there is no such date, immediately upon such announcement; and (ii) if Seller announces a surcharge, such surcharge shall become effective for the Products or Service Items scheduled for shipment beginning on the date set forth in Seller’s announcement of such surcharge or, if there is no such date, immediately upon such announcement.
27) Prices do not include any taxes or other assessments. All taxes, duties, fees, assessments or other charges of any kind imposed by any federal, state, municipal or other governmental authority which Seller is required to collect or pay with respect to the provision, production, sale or shipment of the Products or Services shall be the responsibility of Buyer. Buyer agrees to pay all such taxes and further agrees to reimburse Seller for any such payments made by Seller. Buyer hereby affirms that it is purchasing the Products referenced herein for resale, and/or that Buyer is not the end user of the Products, to be exempt from any otherwise applicable sales tax.
28) If Buyer fails to make payment in full or in part when due or refuses to pay any applicable price increases or surcharges, Seller shall have the right to: (i) immediately suspend performance and cancel the unfinished portion of any outstanding orders, (ii) declare all unpaid amounts for the Products or Service Items delivered immediately due and payable, and (iii) withhold further deliveries. If Seller elects to proceed with an order after the suspension of performance, Seller shall have an extension of time for performance as is necessitated by the suspension. Seller shall have the right to enforce payment of the full purchase price, including any price increase or surcharge, for Products or Service Items already delivered or in process. Buyer shall reimburse Seller for all costs of collection, including reasonable attorney’s fees, incurred because of Buyer’s failure to make payments when due.
29) Seller shall have the right to credit toward the payment of any monies that may become due Buyer hereunder any amounts which may now or hereafter be owed to Seller or any of its subsidiaries or affiliates. Buyer shall pay Seller’s invoices without discount, setoff or reduction for any reason, including asserted warranty claims or other claims of non-performance by Seller.
30) Checks or payments, whether full or partial, received from or for the account of Buyer, regardless of writings, legends or notations upon such checks or payments, or regardless of other writings, statements or documents, shall be applied by Seller against the amount owing by Buyer with full reservation of all Seller’s rights and without an accord and satisfaction of Buyer’s liability. Payments by checks or bank certified or not, and money order are allowed for US banks only and may be subject to a hold as the Seller or Seller’s bank deems necessary.
31) EXCEPT AS EXPRESSLY SET FORTH IN SELLER’S EMAIL QUOTATION, ORDER ACKNOWLEDGEMENT OR SEPARATE WRITTEN AND SIGNED AGREEMENT, SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY DISCLAIMED. AT SELLER’S DISCRETION, BUYER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THE CONFORMANCE OF ANY PRODUCTS OR SERVICE ITEMS FURNISHED BY SELLER UNDER THIS AGREEMENT SHALL BE LIMITED TO EITHER: (1) REPLACEMENT OF SUCH PRODUCTS OR SERVICE ITEMS AT THE POINT OF SHIPMENT FROM SELLER’S FACILITY, OR (2) STORE CREDIT AGAINST THE PURCHASE PRICE OF SUCH PRODUCTS OR SERVICE ITEMS UPON AUTHORIZED RETURN THEREOF, AT SELLER’S DISCRETION. In the event Seller has authorized Buyer to scrap all or any portion of the Products or Service Items, the scrap allowance is to be credited to Seller. The employees and representatives of Seller are not authorized to make any statement or representation as to the Products or Service Items inconsistent with this Agreement and no such statements made will be binding upon Seller or be grounds for any claim.
32) No claim for damages for non-conforming Products or Service Items will be allowed unless Buyer provides Seller with written notice of the claim within thirty (30) days of the date the Products or Service Items were delivered to Buyer. To assert such a claim, Buyer must (a) at Seller’s request, return to Seller 100% or, if agreed by Seller, a lesser but still statistically relevant percentage of the Products or Service Items claimed to be non-conforming, and (b) provide reasonable evidence to support the claim, including, if requested by Seller, results of diagnostic tests, evaluations and investigations performed by Buyer or Buyer’s customer. Products or Service Items for which damages are claimed shall not be returned, repaired, or discarded without Seller’s prior written consent. If requested by Seller, the non-conforming Products or Service Items must be returned to Seller at Buyer’s expense within ten (10) days of Seller’s request. No claims, rejections or returns for non-conforming Products or Service Items will be permitted unless Buyer cooperates in full with Seller’s technical personnel to determine the cause of the non- conformance.
33) Claims by Buyer with respect to shortage of Products or Service Items invoiced or for damaged Products or Service Items must be made to Seller in writing no later than sixty (30) days from the date the Products or Service Items were delivered to Buyer. All claims must be made only for substantial cause, must be in writing, and must specify the reason(s) for the claim. THE FAILURE TO NOTIFY SELLER OF ANY CLAIM WITHIN THE TIME PERIOD SPECIFIED BY THIS SECTION SHALL CONSTITUTE A WAIVER OF AND BAR SUCH CLAIM. SELLER SHALL INCUR NO LIABILITY FOR SHORTAGE OR DAMAGE ALLEGED TO HAVE OCCURRED OR EXISTED AT OR PRIOR TO DELIVERY TO THE CARRIER UNLESS BUYER SHALL HAVE ENTERED FULL DETAILS THEREOF ON CARRIER’S DELIVERY RECEIPT WHICH MUST BE SIGNED BY THE CARRIER’S AGENT. SELLER MUST BE GIVEN AN OPPORTUNITY TO INVESTIGATE THE CLAIM BEFORE BUYER DISPOSES OF THE PRODUCTS OR SERVICE ITEMS. ANY DAMAGED PRODUCTS OR SERVICE ITEMS SHALL NOT BE RETURNED, REPAIRED OR DISCARDED WITHOUT SELLER’S WRITTEN PERMISSION.
34) Buyer understands and acknowledges that all Warranties are non-transferable. Seller’s products and services are covered by a limited lifetime service warranty. Limited lifetime warranty covers parts and labor. Repaired parts are warrantied for 6 months only. Liability is limited to replacement only, warranty is subject to approval, burned out, over driven, abused, or alternators with physical damage are not covered. Burned wires, un-taped, modified, cut, or rodent chewed wiring harness are not covered.
35) Seller is not responsible for any other costs incurred by customer because of part failure, this includes but is not limited to shipping costs, tow charges, mechanic charges, rental charges, or other damaged parts.
36) All warranties are subject to inspection to be conducted by Seller’s employees only. Product must be registered with-in 30 days of install, registration must include photos of the install, and photos must show power and ground cable to the alternator, fuse, batteries used and the installation of the product purchased from Seller. Failure to do so will automatically void warranty. The following condition will not be covered by any warranty offered by Seller, physical damage, tampering or disassembly of product in any way, modification, burned parts, rodent damage, and/or damage because of secondary part failure.
37) Notwithstanding anything in this Agreement to the contrary, the following special terms and conditions shall apply to all sales of non-prime and secondary products: (a) any descriptions, samples and specifications for such products are not warranted by Seller to be accurate or complete and Seller shall not be responsible for the consequences of any inaccuracies, insufficiencies or omissions in such descriptions, samples and specifications; (b) such products are sold on an “as is” basis, Seller’s facility, unless otherwise specified by Seller; (c) deficiencies of quality, character, size or condition shall not constitute grounds for claim against Seller and no such claims shall be honored; (d) Seller shall not in any event be liable for transportation or handling costs or for the costs of any work done or materials furnished by Buyer or anyone with respect to the products sold or for any incidental or consequential damages in contract, in tort or otherwise to Buyer or anyone else or for any injury to person or property by reason of any deficiencies or alleged deficiencies in such products or any failure or alleged failure of such products to meet applicable descriptions or specifications; (e) Buyer agrees to indemnify and hold harmless Seller from and against all claims, demands or actions in contract, in tort or otherwise, including the defense thereof, brought against Seller, whether based on an act, omission or negligence of Buyer, or act, omission or negligence of Seller, in connection with the manufacture, sale, or use of the products, or upon any defect in the products, whether or not caused by Seller, its agents or employees; and (f) Seller reserves the right to reject any or all bids or withdraw any products from sale.
38) Seller makes no warranty with respect to data referring to mechanical properties or chemical analyses of tests performed on specimens of the Products or Service Items. Any data referring to mechanical properties or chemical analyses are the result of tests performed on specimens obtained from specific locations on the Products or Service Items in accordance with proscribed sampling procedures.
39) Seller assumes no obligation or liability for any technical advice furnished to Buyer, including without limitation technical advice with respect to the use of the Products or Service Items, all such technical advice being given and accepted at Buyer’s risk. Seller will not be liable for any damages of any kind arising out of or relating to the use of or the inability to use the information provided, including but not limited to any special, indirect, incidental or consequential damages including, without limitation, demurrage charges, cost of shipment, downtime, lost profits (whether direct or indirect), or lost sales, whether foreseeable or not, and even if Seller has been advised of the possibility of damages.
40) Nothing in this Agreement is to be construed as a grant or assignment of any license or other right to Buyer of any of Seller’s or its affiliates’ intellectual property rights, whether patent, trademark, trade secret, copyright or otherwise. All improvements and developments related to the Products or the efforts of Seller and Buyer will be owned exclusively by Seller, and Buyer shall reasonably cooperate with Seller in confirming that result.
41) Any pricing or other sensitive commercial information provided by Seller to Buyer is proprietary to Seller and shall be held in confidence by Buyer, shall only be used by Buyer in connection with this sale, and shall not be used for any other purposes or disclosed to third parties without Seller’s prior written consent. Buyer shall be liable for any loss to Seller or commercial gain by others from unauthorized use of confidential information occasioned by Buyer’s failure to comply with this provision.
42) Unless otherwise agree to in writing by an authorized representative of Seller, Buyer shall have no right to audit any books or records of Seller and Buyer shall have no right to enter into any facility owned or controlled by Seller.
43) SELLER’S LIABILITY, WHETHER IN CONTRACT, IN TORT, UNDER WARRANTY, IN NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES, AND UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, DEMURRAGE CHARGES, COSTS OF SHIPMENT, DOWNTIME, LOST PROFITS (WHETHER DIRECT OR INDIRECT), LOST SALES, DAMAGE TO EQUIPMENT, OR CLAIMS OF BUYER’S CUSTOMERS OR OTHER THIRD PARTIES FOR DAMAGES OR PENALTIES, WHETHER OR NOT BUYER IS LEGALLY OBLIGATED TO PAY THEM. SELLER’S LIABILITY HEREUNDER SHALL BE LIMITED TO EITHER: (1) THE OBLIGATION TO REPAIR OR REPLACE, AT SELLER’S SOLE DISCRETION, ONLY THOSE PORTIONS OF THE PRODUCTS OR SERVICE ITEMS PROVEN TO HAVE FAILED TO MEET IN MATERIAL RESPECT THE SPECIFICATIONS ON THE SELLER’S EMAIL QUOTATION, ORDER ACKNOWLEDGEMENT, OR SEPARATE WRITTEN AND SIGNED AGREEMENT AT THE TIME OF SHIPMENT FROM SELLER’S FACILITY, OR (2) STORE CREDIT AGAINST THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES. SELLER AND BUYER EXPRESSLY AGREE TO THIS ALLOCATION OF RISK AND THE PRICE STATED FOR THE PRODUCTS OR SERVICES IS CONSIDERATION FOR THE LIMITATION ON SELLER’S LIABILITY. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXCLUSIVE REMEDY DESCRIBED IN THIS SECTION FAILS ITS ESSENTIAL PURPOSE.
44) Buyer agrees to indemnify, defend and hold harmless Seller, its directors, officers, employees, agents, successors and assigns from and against any and all damages, losses, expenses, costs (including without limitation reasonable attorney’s and accountant’s fees), claims, suits, actions, judgments or other liability asserted against or incurred by Seller arising out of (a) Buyer’s breach of its obligations hereunder, (b) Buyer’s negligence or misconduct, or (c) Buyer’s misuse or misapplication of the Products or Service Items or damage to the Products or Service Items caused by Buyer or its employees, agents or customers.
45) Seller shall not be responsible for cancellation or delay in delivery or performance resulting, in whole or in part, from causes beyond its reasonable control, including, but not limited to: acts of God; acts of Buyer; strikes or other labor disturbances regardless of whether or not Seller is capable of settling such strike or disturbance; mill or facility conditions; temporary or permanent mill or facility closures; equipment failure; inability to obtain fuel, material, or parts; war; acts of terrorism; sabotage; riot; delays in transportation; repairs to equipment; natural disasters; epidemics; floods; fires; action of governmental authorities (valid or invalid); severe weather conditions; accidents; explosions; failure of or inability to obtain power, raw materials, suppliers, labor, equipment or transportation; a court or administrative injunction or order; or any other contingency the non-occurrence of which was a basic assumption on which this Agreement was made.
46) This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Utah, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Buyer, acting for itself and its successors and assigns, hereby expressly and irrevocably consents to the exclusive jurisdiction of the state and federal courts having authority over the territory of Salt Lake County, Utah, for any litigation which may arise out of or be related to this Agreement or the purchase or use of the Products or Services. Any action brought in any such court may not be transferred or removed to any other court. Buyer waives any objection based upon forum non-conveniens or any objection to venue of any such action
47) SELLER AND BUYER AGREE THAT, UNLESS OTHERWISE SPECIFIED IN THIS AGREEMENT, ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT OR THE SALE OF THE PRODUCTS OR SERVICES MUST BE BROUGHT WITHIN ONE YEAR AFTER THE DATE ON WHICH THE PRODUCTS OR SERVICE ITEMS IN QUESTION WERE DELIVERED TO BUYER OR THE DATE ON WHICH THE EVENT GIVING RISE TO THE ACTION OCCURRED, WHICHEVER IS EARLIER.
48) Seller and Buyer will attempt in good faith to resolve promptly any dispute arising out of or relating to this Agreement or the breach thereof. If a dispute should arise, BUYER AND SELLER AGREE TO SUBMIT THE DISPUTE TO MEDIATION. BUYER AND SELLER FURTHER AGREE THAT THEIR PARTICIPATION IN MEDIATION IS A CONDITION PRECEDENT TO ANY PARTY PURSUING ANY OTHER AVAILABLE REMEDY IN RELATION TO THE DISPUTE. Mediation involves no formal court procedures or rules of evidence, and the mediator does not have the power to render a binding decision or force an agreement on the parties. Buyer and Seller agree that the entire mediation procedure will be confidential. Buyer or Seller must give written notice of their desire to commence mediation, and a mediation session must take place within forty-five (45) days after the date such notice is given. The mediation shall be attended by representatives of each party with authority to resolve the dispute, and counsel for the parties shall not attend the mediation unless otherwise agreed to by the parties. Buyer and Seller will jointly appoint a mutually acceptable and neutral mediator. If Buyer and Seller are unable to agree upon the appointment of a mediator within seven (7) days after notice of desire to mediate is given, Buyer or Seller may apply to the American Arbitration Association for appointment of a mediator. The mediation shall be held in Salt Lake City, Utah. Buyer and Seller agree that the expenses of mediation shall be borne equally by both parties, with the exception of Buyer’s travel expense and lodging. Buyer and Seller agree that arbitration will not be used to settle a dispute arising out of or relating to this Agreement or the breach thereof. Buyer understands and acknowledges that should any disagreements arise, that Buyer waives the right and will not file for credit card charge backs, claims with credit card or payment companies, including but not limited to state or federal consumer protection and independent agencies, online or off. Only options available for dispute resolution are Mediation followed by Litigation if necessary.
49) The failure of Seller to enforce any of the provisions of this Agreement shall not be construed as a waiver of Seller’s right to enforce each and every provision hereof. Seller reserves the right to enforce these terms and conditions at any time and none shall be deemed waived unless such waiver is in writing signed by an authorized representative of Seller. Seller’s rights and remedies set forth in this Agreement are in addition to all legal and equitable rights and remedies available to Seller.
50) Buyer shall not assign or delegate any or all of its rights or obligations under this Agreement without the prior written consent of Seller, and any attempt to do so will be ineffective.
51) This Agreement is for the sole and exclusive benefit of the parties hereto and their permitted successors and assigns. Nothing expressed or referred to in this Agreement will be construed to give any other person any legal or equitable right, remedy or claim under or with respect this Agreement. Buyer and Seller agree that all transactions are considered private, Buyer and Seller agree that there will be no online posting, or verbal descriptions of any aspect of the transaction, including but not limited to price, performance, quality or product or transaction, shipping time, build time, delivery, and customer service.
52) Seller and Buyer are independent parties and nothing in this Agreement shall make either party an agent, partner, joint venture, or legal representative of the other.
53) If any provision or part of a provision of this agreement is declared invalid, illegal, or unenforceable under applicable law, the affected provision will be considered omitted or modified to conform to applicable law. The validity, legality, and enforceability of all other remaining provisions or parts of provisions will remain in full force and effect.
54) Seller makes no representation with respect to the country of origin, qualification for duty preference or similar program, specific Harmonized Tariff Schedule Number, export jurisdiction, U.S. Munitions List category, Export Control Classification Number, or export authority of any good. Seller retains all of its duty drawback rights, and any attempt by Buyer to transfer any such rights will be void. Buyer shall not, itself or by any freight forwarder, customs broker or other agent or third party under Buyer’s direction or control, designate Seller as the U.S. Principal Party in Interest (as defined in the U.S. Foreign Trade Regulations, 15 CFR Part 30) or file the Electronic Export Information with U.S. Bureau of Census (“EEI”), unless otherwise agreed in writing by an authorized representative of Seller. If Buyer files an EEI without the prior written consent required by the preceding sentence, then: (i) the EEI will be considered to have been made without Seller’s authority or permission, and any false statements to the government will be considered to have been made by Buyer or its agent, as applicable, (ii) any affected transaction will be considered to be a routed export transaction, such that Buyer or its agent will be considered the U.S. Principal Party in Interest and exporter of record (as defined by the Foreign Trade Regulations and the Export Administration Regulations) for those transactions, (iii) Buyer shall assume all of the responsibilities of the exporter of record for any such transactions; and (iv) Seller will have no responsibility as the exporter of record. Buyer represents that it is not, and to the best of Buyer’s knowledge, its customers, its customers’ end-users and its agents are not, subject to any U.S. or other government sanction or restriction that would prohibit the sale or export by Seller of the Products or Services. Upon Seller’s request, Buyer shall provide all end-user and end-use information of which it is aware or which it could obtain with commercially reasonable efforts. Buyer shall comply strictly with all applicable U.S. export laws and regulations, and Buyer shall assist Sellers in complying and documenting compliance with any applicable U.S. export laws, regulations and executive orders. Regardless of any statements on Buyer’s purchase order or other documents to the contrary, Seller shall not be the importer of record (as that term is defined by U.S. law at 19 USC 1484, or equivalent provision of non-U.S. law) with respect to a transaction governed by this Agreement, unless otherwise agreed in writing by an authorized representative of Seller.
55) Buyer is considered the owner of all specifically identified tooling, dies and similar items that Buyer owns and places in Seller’s possession for the purpose of manufacturing the Products or providing the Services (the “Buyer Tooling”). Buyer is responsible for paying for any necessary replacements of and repairs to the Buyer Tooling. Seller assumes no obligation or liability with respect to the Buyer Tooling or any other property of Buyer to which Seller is not taking title, including tangible personal property of Buyer upon which Seller will be performing Services (the “Buyer Property”). Seller is not obligated to segregate, label, protect, insure or take any other action with respect to managing and safeguarding the Buyer Tooling and Buyer Property. Buyer accepts all risk of loss and damage to the Buyer Tooling and Buyer Property. Seller is considered the owner of all tooling, dies and similar items used by Seller in connection with the Products and Services other than the Buyer Tooling (“Seller Tooling”). Buyer acquires no interest in the Seller Tooling, notwithstanding any charges, amortizations or other costs included in the pricing or otherwise paid by Buyer in relation to the Seller Tooling. Seller may use the Buyer Tooling and the Seller Tooling without restriction in any of its business operations, including in the manufacture of the Products, provision of the Services, and the manufacture of products and provision of services for other customers.
56) If the Agreement obligates Seller to provide traceability on Products or Service Items, Seller’s obligation with respect to the Products or Service Items returned to Seller (a) is limited by the accuracy and completeness of the information provided by Buyer with respect to the returned Products or Service Items, and (b) will terminate if the return was not authorized in advance by Seller.