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Warranty and Terms and Conditions These
terms and conditions of sales which appear on all invoices are the terms and
conditions upon which Full Spectrum Technologies, LLC and its U.S. subsidiaries
(together "FST") make all sales. FST will not accept any other terms
and conditions of sale, unless Buyer and FST have executed a master contract
which specifically supersedes and replaces these terms and conditions.
Acceptance of all purchase orders and requests is expressly made conditional
upon Buyer's assent, expressed or implied, to the terms and conditions set forth
herein without modification or addition. 1.
WARRANTY FST warrants its products to be free from defects in
material and workmanship under normal use and service for a period of one year
from the date of delivery and to conform to manufacture specifications (if not
specified), unless otherwise specified in writing. Any product that fails to
meet its specifications on delivery will be replaced or a credit will be issued
at our option. FST makes no warranty on the merchantability, fitness or
application of the products. Damage to any product sold by FST due to misuse,
neglect, malicious or inadvertent act, or any other cause, by anyone person
other than FST employees or contractors, whether direct or indirect shall
constitute a breach of warranty for that product. Costs incurred in corrections
to or replacement of damaged products shall be borne entirely by Buyer. 2. ACCEPTANCE Buyer's
acceptance of these terms and conditions shall be indicated by any of the
following, whichever first occurs: (a) Buyer's making of an offer to purchase
Product from FST; (b) Buyer's written acknowledgment hereof; (c) Buyer's
acceptance of any shipment or delivery of any part of the items specified for
delivery (the "Products"); or (d) any other act or expression of
acceptance by Buyer. FST's acceptance is expressly limited to the terms and
conditions hereof in their entirety without addition, modification or exception,
and any term, condition or proposals hereafter submitted by Buyer (whether oral
or in writing) which is inconsistent with or in addition to the terms and
conditions set forth hereon is objected to and is hereby rejected by FST. FST's
silence or failure to respond to any such subsequent or different term,
condition or proposal shall not be deemed to be FST's acceptance or approval
thereof. 3.
DELIVERY Unless
otherwise agreed in writing, delivery shall be made in accordance with FST's
shipping policy in effect on the date of shipment. For all domestic
transactions, unless otherwise stated on the front of the invoice, title to, and
all risk of loss or damage with respect to the Products shall pass to Buyer upon
delivery by FST to the Buyer, the Buyer’s representative, the carrier at FST's warehouse or plant. For all
international transactions, the Product shall be sold on a delivered, insurance
paid, duty and international freight unpaid basis. FST assumes no responsibility
for charges attendant to Customs clearance in the country of delivery, customs
duty, VAT or any other charges or taxes within the country designated for
delivery by the Buyer. Title and risk of loss shall pass to the Buyer upon
delivery to the port designated by the Buyer and prior to Customs clearance.
Delivery is subject to the payment provisions set forth herein and to FST's
receipt from Buyer of all necessary information and documentation from Buyer
including all import certificates, exemption and/or resale certificates,
licenses and other documents as may be required from Buyer for export of the
Product. Buyer shall promptly notify FST, in no event later than five (5)
business days after delivery, of any claimed shortages or rejection as to any
delivery. Such notice shall be in writing and shall be reasonably detailed,
stating the grounds for any such rejection. Failure to give any such notice
within such time shall be deemed an acceptance in full of any such delivery. FST
shall not be liable for any shipment delays beyond the reasonable control of FST
which affect FST or any of FST's suppliers, including, but not limited to,
delays caused by unavailability or shortages of Products from FST's suppliers;
natural disasters, acts of war; acts or omissions of Buyer; fire, strike, riot,
or governmental interference; unavailability or shortage of materials, labor,
fuel or power through normal commercial channels at customary and reasonable
rate s; failure or destruction of plant or equipment arising from any cause
whatsoever; or transport failures. 4.
PRICE AND PAYMENT Buyer
shall bear all applicable import or customs duties, license fees and similar
charges, however designated or levied on the sale of the Products (or the
delivery thereof) or measured by the purchase price paid for the Products. (FST's
prices set forth on the front side of the invoice do not include such fees and
charges.) Exemption certificates must be presented prior to shipment or delivery
if they are to be honored. Unless otherwise specified, payment terms are COD.
FST, at its discretion, may require reasonable advance assurances of payment
through irrevocable bank letters of credit or otherwise. All unpaid invoices
shall bear interest at an amount equal to 1-1/2% of the outstanding balance per
month (or the maximum rate of interest allowed to be contracted for by law,
whichever is less), commencing upon the date payment is due. Buyer's failure to
make timely payment may result in such action as commencement of proceedings for
collection, revocation of credit, stoppage of shipment or delivery, delay or
cessation of future deliveries, denial of service, repossession of unpaid
delivered goods and termination of any one or more sales agreements.
Notwithstanding any "net" payment provisions specified on the invoice,
FST shall have no continuing obligation to deliver Products on credit, and any
credit approval may be withdrawn by FST at any time and without prior notice.
FST retains (and Buyer grants to FST by submitting a purchase order or purchase
request) a security interest in the Products to secure payment in full and
compliance with all sales agreements, and Buyer agrees to execute any additional
documents necessary to perfect such security interest. In the event the sales
invoice shall be placed by FST in the hands of an attorney for the purpose of
collection, with or without litigation, or for the purpose of enforcing FST's
security interest in the Products, the Buyer agrees to pay any and all costs
associated with such placement, including, without limitation, attorney's fees
and costs incurred prior to, during, or subsequent to trial, and including,
without limitation, collection, bankruptcy, or other creditor's rights
proceedings. If a sale is to occur, or the Product is to be shipped, outside of
the United States, Buyer acknowledges and agrees that the amount due FST is
contracted in U.S. Dollars and that payment in U.S. Dollars is of the essence.
Any payment by Buyer in local currency or the receipt by FST of local currency
as a consequence of enforcement procedures against Buyer will be deemed an
authorization for FST to use that local currency to purchase U.S. Dollars or, if
such purchase is prohibited by local law, an authorization to purchase
appropriate bonds or other instruments and export them from the Buyer's country
in order to convert the currency into U.S. Dollars and apply the proceeds to the
payment of any amounts owed to FST by Buyer. Any deficiency as a result of
conversion of payment into U.S. Dollars shall be the responsibility of Buyer. 5.
PRODUCT RETURNS Return
of Products purchased shall be governed by FST's Product Return policies in
effect on the date of the invoice. FST reserves the right to modify or eliminate
such policies at any time. Although FST's policies may permit Buyer to return
Products claimed to be defective under certain circumstances, FST makes no
representations or warranties of any kind with respect to the Products. FST
HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO
THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FST WILL NOT BE LIABLE FOR
ANY DAMAGE, LOSS, COST OR EXPENSE FOR BREACH OF WARRANTY. The right to return
defective Products, as previously described, shall constitute FST's sole
liability and Buyer's exclusive remedy in connection with any claim of any kind
relating to the quality, condition or performance of any Product, whether such
claim is based upon principles of contract, warranty, negligence or other tort,
breach of any statutory duty, principles of indemnity or contribution, the
failure of any limited or exclusive remedy to achieve its essential purpose, or
otherwise. In the event FST issues a return authorization to Buyer allowing
Buyer to return Product to FST, Buyer will deliver the Product to FST's address
in the United States, if so required by FST, and Buyer shall bear all applicable
federal, state, municipal and other government taxes (such as sales, use and
similar taxes) as well as import or customs duties, license fees and similar
charges, however designated or levied, on any replacement Product to be shipped
by FST to Buyer. 6.
LIMITATION OF LIABILITY FST
shall not be liable under any circumstances for any special, consequential,
incidental, PUNITIVE or exemplary damages arising out of or in any way connected
with the agreement to sell Product to Buyer or the Product, including, but not
limited to, damages for lost profits, loss of use, lost data or for any damages
or sums paid by Buyer to third parties, even if FST has been advised of
possibility of such damages. The foregoing limitation of liability shall apply
whether any claim is based upon principles of contract, warranty, negligence or
other tort, breach of any statutory duty, principles of indemnity or
contribution, the failure of any limited or exclusive remedy to achieve its
essential purpose, or otherwise. 7.
GENERAL These
terms and conditions shall constitute the final, complete and exclusive
agreement of the parties with respect to all sales by FST to Buyer and shall
supersede all prior offers, negotiations, understandings and agreements. Unless
Buyer and FST have executed a master contract which specifically supersedes and
replaces the terms and conditions herein, it is expressly agreed that no prior
or contemporaneous agreement or understanding, whether written or oral, shall
contradict, modify, supplement or explain the terms and conditions contained
herein. No additional or different terms or conditions, whether material or
immaterial, shall become a part of any sales agreement unless expressly accepted
in writing by an authorized officer of FST in the United States. Any waiver by
FST of one or more of these terms and conditions or any defaults hereunder shall
not constitute a waiver of the remaining terms and conditions or of any future
defaults hereunder. No failure or delay by either party in exercising or
enforcing any right hereunder shall operate as a waiver thereof or preclude any
other exercise or enforcement of rights hereunder. Any provision of these terms
and conditions that is prohibited or unenforceable under the laws of the State
of California shall be ineffective to the extent of such prohibition or
unenforceability, without impairing or invalidating the remaining provisions of
these terms and conditions. All sales agreements shall be deemed made in, and
shall be governed by, the laws of the State of California. The venue for any
disputes arising out of any sales agreement shall be, at FST's sole and
exclusive option, Los Angeles County, California or the courts with proper
jurisdiction at Buyer's location. ALL SALES TRANSACTIONS EXCLUDE THE APPLICATION
OF THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF
GOODS, IF OTHERWISE APPLICABLE. |
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