PURCHASE ORDER TERMS AND CONDITIONS rev. 01/13
GENERAL. (a) These Terms and Conditions constitute an integral part of any offer made by Seller to sell goods to Buyer and shall govern the sale of the goods. Any additional or different terms or conditions proposed by Buyer in any purchase order or otherwise are hereby rejected. Buyer’s acceptance of all of the terms and conditions herein is an express condition to the formation of any contract of sale between Buyer and Seller. (b) No order by Buyer, regardless of whether a deposit has been accepted, shall be binding upon Seller until a credit review has been completed and the order has been accepted by an authorized representative of Seller at its corporate headquarters in Scottsdale, AZ, regardless of Seller’s point of manufacture or point of shipment. (c) If a contract is not earlier formed by mutual agreement in wiring signed by an officer of HiTech Wireless based at its corporate headquarters in Scottsdale, AZ., acceptance of any goods shall be deemed acceptance of the terms and conditions stated herein.
PRICES. (a) Unless otherwise stated in writing signed by an officer of HiTech Wireless based at its corporate headquarters in Scottsdale, AZ, all prices quoted by Seller are based on U.S. dollars, F.O.B. shipping point, include domestic packaging, and are effective for thirty (30) days from the date of quotation. (b) Transportation shall be by common carrier, at Buyer’s risk and expense, with the charges therefore added to the quoted prices. (c) Should Buyer postpone the delivery date, Seller shall have the right to adjust the price of the undelivered goods to Seller’s price at the time of shipment. (d) Unless otherwise agreed to in writing signed by an officer of Seller based out of Seller’s corporate headquarters in Scottsdale, AZ. Seller reserves the right to adjust its prices for any goods scheduled for shipment more than sixty (60) days after Seller’s acceptance of Buyer’s order. (e) All of Seller’s published prices or quoted prices are subject to change without notice.
PAYMENT. Payment terms shall be NET30 from invoice date, unless otherwise formally stated. A late fee or an interest charge of 1½% per month (18% per year), or the maximum allowed by law, may be added to invoices overdue beyond sixty (60) days. Payment of any late charge will not cure or excuse any Buyer default, and Seller’s acceptance of such late charge will not be deemed a waiver of Buyer’s responsibility to pay by Seller. Buyer will pay reasonable fees Seller incurs for collecting any overdue payments, including reasonable attorneys’ fees and costs. All quoted prices are in U.S. dollars unless otherwise specified, and Buyer will make all payments, unless Seller otherwise pre-approves payment in another currency, to Seller in US dollars in cash or other method agreed upon in advance by Seller. In the event the Buyer's account is suspended for any reason, any amount due on the account will immediately become due and payable.
RETURNS. (a) After shipment, all sales of Product(s) purchased as a result of this Offer are final. Seller may, at its sole discretion, authorize Product(s) returns, subject to such conditions as Seller may specify. (b) In the case of an authorized return, Buyer must comply with Seller’s current Return Material Authorization (“RMA”) procedures. Such procedures shall be reasonably consistent with the industry’s standard return procedures, and shall not conflict with any provisions of these Terms and Conditions.
TAXES. Any sales, use or manufacturer’s tax which may be imposed upon the sale or use of goods, or any property tax levied after readiness to ship, or any excise tax, license or similar fee required under this transaction, shall be in addition to the quoted prices and shall be paid by Buyer. If Buyer is exempt from any taxes, Buyer shall furnish to Seller an appropriate tax exemption certificate, in a form acceptable to the taxing authority or authorities having jurisdiction over such tax matters.
DOMESTIC TERMS OF PAYMENT. (a ) Unless otherwise agreed to in writing signed by an officer of HiTech Wireless based out of its corporate headquarters in Scottsdale, AZ., the payment terms on orders for shipments made to the continental United States are “Thirty” (30) days from the date of invoice. All charges are payable in U.S. dollars.
EXPORT PAYMENT TERMS. Unless other arrangements have been otherwise agreed to, payment on export orders shall be made by irrevocable confirmed letter of credit, payable in U.S. dollars against Seller’s invoice and standard shipping documents. Such letter of credit shall be in an amount equal to the full purchase price of the goods, plus insurance and freight charges and any other costs or fees incurred in the shipment of the goods to Buyer’s destination, and shall be established at a bank acceptable to Seller.
DELIVERY, RISK OF LOSS, AND TITLE. (a) Delivery and completion schedules provided by or agree to by Seller are estimations only. (b) Unless otherwise agreed to, delivery shall be complete upon transfer of possession to common carrier, F.O.B. shipping point, whereupon title and all risk of loss, damage or destruction to the goods shall pass to Buyer. (c) In the absence of a written agreement to the contrary, the means of shipment will be at the discretion of Seller. Seller reserves the right to make partial shipments and to submit invoices for partial shipments. (d) Special Product orders are generally orders for products not in Seller’s catalog or those requiring special processing or testing. Shipments of Special Products within five percent (5%) of the quantity ordered, but not in excess of that, shall constitute full delivery. (e) Seller assumes no responsibility for refund or replacement of products shipped at Buyer’s request prior to successful completion of acceptance inspection, except for those products failing to meet agreed upon incoming inspection at Buyer’s facility.
PURCHASE PRICE SECURITY INTEREST. (a) It is agreed by Buyer and Seller that, as to the goods which are the subject of any contract of sale and all accessions thereto and proceeds thereof, a purchase money security interest shall attach with Seller as secured party, and with respect to goods which are resold in any form by Buyer, Seller shall be the assignee of any security interest which Buyer retains or obtains in such goods until Buyer has made payment in full there for in accordance with the terms hereof. (b) Buyer shall be in default (i) if it fails to make any payment as provided for herein; (ii) if bankruptcy, receivership or insolvency proceedings are instituted by or against Buyer; or (iii) if Buyer makes any assignment for the benefit of creditors. (c) Upon Buyer’s default, Seller shall have all the rights and remedies of a secured creditor as well as those of a seller of goods, under the Uniform Commercial Code and any other applicable law, including but not limited to, the RIGHT TO TAKE POSSESSION of the goods. (d) Seller may remedy any default and may waive any default without waiving the default remedied or without waiving any prior or subsequent default. (e) Buyer agrees to cooperate fully and assist Seller in perfecting and/or continuing Seller’s security interest and to execute such documents and accomplish such filings and/or recordings thereof as Seller may deem necessary for the protection of Seller’s interest in the goods. (f) The making of any Contract of sale by Buyer and Seller shall be consummated by their signing thereof and this security interest shall be deemed in full force and effect.
TERMINATION AND CANCELLATION. (a) Buyer may terminate a Purchase Order in whole or, from time to time, in part upon sixty (60) days’ advance written notice for Standard Products and ninety (90) days’ advance written notice for Special Products. In any such event Buyer shall be liable for termination charges, which shall include a price adjustment based on the quantity of goods actually delivered, and all costs, direct or indirect, incurred or committed for any sales contract together with anticipated profits. (b) Unless otherwise agreed upon in a writing signed by signed by an officer of Seller based out of Seller’s corporate headquarters in Scottsdale, AZ. Seller may cancel all quantities not shipped to Buyer within twelve (12) months of Purchase Order date. In the event that Seller does not ship all quantities because of any action or requisite inaction on the part of Buyer and elects to cancel any quantity not so shipped, Buyer shall be liable for termination charges as provided herein. (c) If in Seller’s sole and absolute discretion, Buyer’s financial condition does not justify the terms of payment specified herein, Seller may, without any liability to Seller, cancel any sales contract or require Buyer to immediately pay for all goods which have been delivered and pay in advance for all goods to be delivered.
NON-WAIVER OF DEFAULT. In the event of any default by Buyer, Seller may decline to make further shipments. If Seller elects to continue to make shipments, Seller’s action shall not constitute a waiver of any default by Buyer or in any way affect Seller’s legal remedies for any such default.
10. U.S. GOVERNMENT CONTRACTS. If the goods to be furnished under any sales contract between the Buyer and the Seller are to be used in the performance of a U.S. Government contract or subcontract, any U.S. Government procurement regulations shall not be incorporated herein by reference (except as may be specified in a separate document signed by an officer of Seller based in Seller’s corporate offices in Scottsdale, AZ. Unless otherwise specifically agreed upon in writing, certified cost or pricing data will not be provided and CAS, Defective Pricing, and Audit requirements will not apply for goods purchased hereunder.
CONTINGENCIES. Seller is not liable, either wholly or in part, for nonperformance or a delay in performance due to force majeure or contingencies or causes beyond the reasonable control of Seller, including but not limited to, shortage of labor, fuel, raw material or machinery or technical or yield failure. Seller may, in its sole and absolute discretion, allocate production and deliveries in the event of shortage or goods.
WARRANTY. The warranties set forth in this paragraph are given in lieu of and expressly disclaim any and all other warranties, express, implied or statutory, including but not limited to, any implied warranties of merchantability or fitness for a particular purpose and of any other warranty obligation on the part of Seller, except as expressly set forth immediately below. Seller warrants the goods against faulty workmanship or the use of defective materials; that such goods will conform to Seller’s published specifications or other mutually agreed upon written specifications for a period set forth herein below; and that at the time of delivery, Seller has title to the goods free and clear of any and all liens and encumbrances. These warranties are the only warranties made by Seller and can be amended only by a written instrument signed by an officer of Seller. Continued use or possession of the goods after expiration of the applicable warranty period stated by the manufacturer shall be conclusive evidence that the warranty is fulfilled to the full satisfaction of Buyer. Any mechanical alteration of the goods or/including any additional testing or screening shall void any warranty obligation, implied or statutory. Seller's warranties as hereinabove set forth shall not be enlarged, diminished or affected by, and no obligation or liability shall arise or grow out of, Seller’s rendering of technical advice or service in connection with Buyer’s order of the goods furnished hereunder.
DISCLAIMER OF LIABILITY. (a) In no event shall Seller be liable for any loss of use, revenue, profit, or for any direct, indirect, special or consequential damages arising out of, connected with, or resulting from the sale and use of goods. (b) If an unauthorized return is initiated by the customer, Seller will not be liable for any freight or handling charges incurred.
DESIGNS AND TRADE SECRETS. Any drawings, data, designs, software programs or other technical information supplied by Seller to Buyer in connection with the sale of goods shall remain Seller’s property and be held in confidence by Buyer. Such information shall not be reproduced or disclosed to others without Seller’s prior written consent in each particular instance.
ASSIGNMENT. Buyer shall not assign this Agreement, any contract of sale, any purchase order, any interest therein or any rights there under without the prior written consent of Seller.
MODIFICATION. This Agreement may not be changed, modified or amended, except in writing signed by authorized representatives of the parties.
EXPORT. These commodities may be subject to U.S. Government export controls. Diversion contrary to U.S. Law is prohibited; export may require validated export licenses.
REMEDIES. If Seller breaches its warranties as contained herein, Seller’s sole and exclusive maximum liability shall be (at Seller’s option) to repair, replace, or credit Buyer’s account for any such goods which are returned by Buyer during the applicable warranty period set forth above, provided that (i) Seller is promptly notified in writing upon discovery by Buyer that such goods failed to conform to the contract of sale with a detailed explanation of any alleged deficiencies, (ii) such goods are returned to Seller, F.O.B. Seller’s plant from which goods were shipped, and (iii) Seller’s examination of such goods shall disclose that such alleged deficiencies actually exist and were not caused by accident, misuse, neglect, alteration, improper installation, improper testing or unauthorized repair. If such goods fail to conform to the applicable warranty, Seller shall reimburse Buyer for transportation charges paid by Buyer for
such goods. If Seller elects to repair or replace such goods, Seller shall have a reasonable time to make such repairs or replace such goods, and such repair, replacement or credit shall constitute fulfillment of all liability of Seller to Buyer whether based in contract, tort, indemnity, statutory provision or otherwise.
19. APPLICABLE LAW AND VENUE. If legal action is commenced by party, the validity, construction and performance of this Agreement, and the legal relations between the parties shall be governed by the State of Arizona, and the venue for such legal action shall be in Maricopa County, Arizona. Seller may commence any action to collect moneys due on account of goods purchased by Buyer hereunder in any court having competent jurisdiction of the subject matter in dispute without resorting first to any alternative dispute resolution.
20. RIGHT TO SEEK INJUNCTIVE RELIEF. Nothing in this Agreement will be deemed to prevent either Party from seeking injunctive relief or any other provisional remedy in an appropriate case in any court of competent jurisdiction of the subject matter in dispute as necessary to protect either Party's trade name, proprietary information, trade secrets, trademarks, know-how, or any other intellectual property rights.
21. LIMITATION OF LIABILITY. Except for intentional wrongdoing, fraud or criminal conduct, the obligations of the parties under any sales contract with Seller shall not constitute the personal obligations of their shareholders, or of their directors, officers, employees, consultants, agents or invitees, and each party shall look only to the assets of the other party for the satisfaction of any liability with respect to any such sales contract, and shall not seek recourse against the shareholders of the other party, or against the directors, officers, employees, consultants, agents, or invitees of the other party, or against their personal assets for such satisfaction.