These General Terms and Conditions of Sale shall govern every agreement between Component Dynamics, LLC, a New Hampshire limited liability company, (the “Company”) having its principal place of business at Exeter, New Hampshire, USA and its customers (“Customers”) with regard to the Company’s products and services (“Products”).
1.1 These General Terms and Conditions of Sale govern the purchase and sale of all Products. Terms or conditions included in a Customer’s purchase order or other communication that are at variance with these General Terms and Conditions of Sale are rejected, unless specifically agreed to in writing by the Company. Trade custom, trade usage and past performance are superseded by these General Terms and Conditions of Sale and shall not be used to interpret them.
1.2 The invalidity or un-enforceability of any provision of these General Terms and Conditions of Sale shall not affect the validity or enforceability of any other provision thereof.
2. Orders and Acceptance
2.1 No purchase order, whether or not submitted in response to a quotation by the Company, shall be binding upon the Company until the Company has accepted the purchase order by issuing a written acknowledgement.
2.2 All purchase orders must be bona fide commitments showing definite quantities. Orders must be accompanied by sufficient information to enable the Company to fulfill the order forthwith. Where such information contains an alteration of specifications previously given by the Customer, the Company is at liberty to refuse such alterations or to adjust its prices to cover any cost increase anticipated by the Company.
2.3 A Customer may not cancel a purchase order accepted by the Company without the express written consent of the Company.
2.4 Whenever the Company in good faith deems itself insecure, it may cancel any outstanding purchase order; decline to make delivery of Products; revoke any extension of credit; reduce any unpaid debt by enforcing its security interest, created hereby, in all Products (and the proceeds therefrom) furnished to a Customer; and take any other steps it deems necessary or desirable to secure itself fully with respect to a Customer’s payment for Products furnished or to be furnished by the Company. The Customer shall indemnify the Company against any loss incurred by virtue of any action taken or not taken by the Company pursuant to this Section 2.
3.1 Dates quoted by the Company for delivery of Products are approximate only. The Company shall not be liable for the delivery of products in advance of or subsequent to the date quoted for delivery, and time for delivery is not of the essence.
3.2 Unless otherwise expressly specified or agreed in writing, delivery of Products will be made F.O.B. the Company’s facility, and title in, risk of loss, and the right of possession to such Products shall pass to the Customer upon the Company’s delivery to a reputable carrier at Company’s shipping facility, and the Company is not responsible for damage or loss in transit, regardless of whether or not Customer may have the right to reject or revoke acceptance of the Products.
3.3 Unless otherwise expressly specified or agreed in writing, the Company shall be authorized to deliver the Products in parts and to send invoices for such partial deliveries.
4.1 Prices for the Company’s Products are quoted, and payable, in U.S. dollars, and are subject to change without notice. All pricing and terms are confidential and shall not be used by Customer for distribution to a third party or to solicit competitive pricing.
4.2 Unless otherwise expressly specified or agreed in writing, prices quoted by or agreed upon by the Company shall be net prices, exclusive of:
4.2.1 costs of packaging, loading, transport, unloading, insurance, installation, assembly or other services, which, if applicable, will be added to the net prices;
4.2.2 applicable tariffs, import duties and related expenses; and
4.2.3 applicable federal, state or local taxes. Applicable taxes will be added to invoices by the Company where it has the legal obligation to collect such taxes, unless a Customer provides the Company with a valid tax exemption certificate.
5.1 Payment is made by a Customer when finally and irrevocably received by the Company.
5.2 Customer payments shall be made in accordance with the Company’s invoice or other written specifications. Payments by Customers with approved credit terms shall be made within 30 days after the invoice date.
5.3 Unless otherwise agreed in writing, payments shall first be allocated to interest and costs and then to the longest outstanding invoice.
5.4 Objections concerning an invoice must be made in writing and must be received by the Company within fourteen (14) days after the invoice date. No objection will suspend or postpone the due date for payment of the invoice. If the Company concludes that an invoice has been justly disputed, it will credit the appropriate amount to the Customer’s account or take such other action as may be appropriate.
5.5 The Company reserves the right to charge a late payment fee of 1.5% of the amount of all overdue accounts for each month, or fraction of a month, during which such overdue amounts remain outstanding. If a collection action is necessary to obtain payment, Customers will also be responsible for all costs of collection, including court costs and reasonable attorneys’ fees.
6.1 Any claimed defect in the quality or quantity of Products must be reported to the Company within 10 days of receipt, after which time Products will be deemed inspected and accepted. Claims regarding defects not discovered or discoverable during the inspection period shall be barred, except and to the extent that such claims are valid under the Company’s limited warranty.
6.2 Claims for damage to goods incurred during shipment shall be filed with the carrier.
6.3 Customers may not return Products, under warranty claim or otherwise, without prior written authorization from the Company and without obtaining a return authorization number from the Company. Return shipping costs shall, in all cases, be paid by Customer. If a Customer’s claim is valid, as determined in the sole discretion of the Company, the Company shall pay the costs of shipping the repaired or replacement Products to Customer.
6.4 Customer hereby waives its rights to set-off.
7. Warranty and Liability
7.1 The Company warrants, for a period of 30 days from the date of delivery, that the fit, form and function of all Products will conform to the specifications of its Customer’s purchase order. Customer assumes all risk and liability for the use of the Company’s Products, whether used singly or in combination with other products.
7.2 The foregoing limited warranty shall not apply if a defect or malfunction is the result of alteration, modification, foreign attachment, misuse, tampering, negligence, abuse or other like causes.
7.3 The Company will make available to Customer any transferable warranties, indemnities, and remedies provided to Component Dynamics by the manufacturer or its authorized distributors.
7.4 The Company’s entire obligation and Customer’s sole and exclusive remedy under the foregoing limited warranty shall, at the Company’s election, be limited to (i) replacement of the defective Product, or (ii) repayment of, or credit for, the purchase price of the defective Product, in each case upon return to the Company of the defective product. Selection among the foregoing remedies shall be at Company’s sole discretion and subject to Customer’s compliance with the Company’s return procedures.
8. Limitation of Warranties
8.1 CUSTOMER ACKNOWLEDGES AND WARRANTS THAT IT HAS SELECTED PRODUCTS BASED ON ITS PROFESSIONAL JUDGMENT AND EXPRESSLY DISCLAIMS ANY RELIANCE UPON ANY STATEMENTS MADE BY COMPANY, OR ANY AGENT, REPRESENTATIVE OR EMPLOYEE OF THE COMPANY, NOT SET FORTH HEREIN.
8.2 THE FOREGOING LIMITED WARRANTY EXTENDS ONLY TO CUSTOMER, AS THE ORIGINAL PURCHASER, AND EXCEPT FOR SUCH LIMITED WARRANTY, THE COMPANY SPECIFICALLY DISCLAIMS ANY AND ALL OTHER EXPRESS OR IMPLIED STANDARDS, GUARANTEES OR WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY BE ALLEGED TO ARISE AS A RESULT OF CUSTOM OR USAGE, ANY WARRANTY OF ERROR-FREE OR VIRUS-FREE PERFORMANCE, AND ALL WARRANTIES OF TITLE, NONINTERFERENCE AND NON-INFRINGEMENT.
8.3 IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES RELATED TO LOSS OF USE, DATA, BUSINESS, PROFITS, GOODWILL, WORK STOPPAGE, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING IN CONTRACT, TORT OR OTHERWISE, EVEN IF THE COMPANY HAS KNOWLEDGE OF THE POTENTIAL LOSS OR DAMAGE. THE COMPANY SHALL NOT BE LIABLE FOR ANY CLAIM WHATSOEVER ARISING AFTER THE EXPIRATION OF THE WARRANTY PERIOD, REGARDLESS OF THE FORM OF ACTION.
The Customer’s rights and obligations arising out of these General Terms and Conditions of Sale may not be assigned to any third party, except with the prior written consent of the Company.
10. Force Majeure
10.1 Non-performance by the Company shall be excused to the extent that performance is rendered impossible by (without limitation) war, strikes, fire, flood, governmental acts or orders or restrictions, failures of suppliers, disruption in electricity supply, non-availability of telecommunication services or any other reason where failure to perform is beyond the control and not caused by the gross negligence of the Company. If either of the parties is prevented by force majeure from fulfilling its obligations (other than an obligation to make payment) under any agreement for more than 30 calendar days, either party is entitled to terminate the agreement upon 30 days’ written notice to the other.
10.2 If, upon the occurrence of the event of force majeure, the Company has fulfilled part of its obligations or will be able to fulfill only part of its obligations, the Company shall have the right to send separate invoices for the Products delivered or capable of being delivered, and the Customer shall be obliged to make payment of the amounts invoiced.
Customer agrees to indemnify, defend and hold the Company, its managers, members and affiliates and their respective employees, officers and directors harmless from and against any and all claims, damages, costs, expenses and other liabilities (including attorneys’ fees and other costs of investigation and defense) caused by or arising out of Customer’s acts or omissions related to the performance of its obligations under its agreements with the Company or its use of Products.
12. Changes To These Terms And Conditions Of Sale
The Company reserves the right to change these General Terms and Conditions of Sale at any time without prior notice.
All notices required or permitted to be sent by one party to the other shall be given in the English language, in writing, and shall be deemed duly delivered when received via: (i) e-mail, provided that a written copy of such notice is promptly delivered thereafter; (ii) facsimile, provided that a written copy of such notice is promptly delivered thereafter; or (iii) an internationally recognized commercial overnight courier service.
14. Compliance with Laws
Each party shall comply with all applicable laws, regulations, court decisions and administrative rulings applicable to the purchase, sale or use of Products.
15. Export Terms
Customer agrees and acknowledges that the products are sold in accordance with U.S. Export Administration Regulations. Customer agrees to ascertain and comply with all applicable export and re-export obligations and restrictions, including without limitation, U.S. export and re-export controls and economic sanctions regulations. Customer further agrees that if the export laws are applicable, it will not disclose or re-export any technical data received under this order to any countries for which the United States government requires an export license or other supporting documentation at the time of export or transfer, unless Customer has obtained prior written authorization from the United States Office of Export Control or other authority responsible for such matters. Customers receiving shipments at US destinations are solely responsible for complying with applicable U.S. export laws.
16. Legal Construction
All transactions to which these General Terms and Conditions of Sale apply shall be governed by and construed in accordance with the laws of the State of New Hampshire, United States of America, without reference to any choice of law provision that would cause the laws of any other jurisdiction to apply. Disputes arising hereunder or pertaining to Products shall be subject to the exclusive jurisdiction of the courts of the State of New Hampshire, to which the parties hereby submit themselves.