Commercial Terms of Sale
ARNOUSE DIGITAL DEVICES, CORP (“ADDC”) COMMERCIAL TERMS OF SALE
THIS COMMERCIAL TERMS OF SALE (“CTS”) CONTAINS THE TERMS AND CONDITIONS THAT APPLY OUR (“CUSTOMER“) PURCHASE OF ADDC PRODUCTS (“PRODUCTS“). BY PLACING AN ORDER FOR PRODUCTS, THE CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS. THE CTS APPLIES UNLESS THE CUSTOMER HAS SIGNED A SEPARATE PURCHASE AGREEMENT WITH ADDC, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN. ANY CUSTOMER PROPOSAL, PURCHASE ORDER OR OTHERWISE THAT ATTEMPTS TO INCLUDE DIFFERENT OR ADDITIONAL TERMS THAT VARY FROM THE CTS ARE OBJECTED TO, DISALLOWED AND INAPPLICABLE.
Section 1 Sales Process and Formation of Contract.
(a) The terms and conditions contained in the CTS are the sole and only terms that govern ADDC’s sale of Products to the Customer named in the Quote and Order Confirmation (as defined below). Collectively, Customer and ADDC are referred to as the “Parties” and individually as “Party.”
(b) Quotes: A Customer may request a written quotation for the purchase of Products (“Quote“) by contacting ADDC. The Quote will, among other things, identify the Product(s), Product quantity and pricing. Prices and quantities listed in the Quote are effective until the expiration date of the Quote. Prices are subject to change due to ADDC’s current inventory, shortages in materials or resources, increase in the cost of manufacturing, or other factors. The Quote shall be subject to the CTS. The Quote also will indicate whether Products are available for immediate sale (“Available“), Available with an estimated delivery time (“TBD“), or ADDC will manufacture the Product to fulfill the Quote (“Made to Order” or “MTO“). Where the Quote contains an estimated date for shipment, that estimate is non-binding. Unless otherwise agreed to in writing, delivery time is not of the essence, as delivery times may be impacted by component and subassembly availability and production capacity. All prices excludes all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Prices include standard packaging. Prices exclude transportation and insurance costs which are the responsibility of the Customer.
(c) Purchase Order: Customer may proceed with the Quote by issuing a Customer purchase order that expressly references such Quote (“Customer Order”). Customer Orders are subject to the CTS. By submitting a Customer Order the Customer agrees to that the CTS governs the transaction. All other terms outside the CTS are rejected and not part of the purchase agreement. Each Customer Order which covers the procurement and sale of any Products that is within the scope of this CTS shall be deemed to incorporate by reference these CTS terms
(d) Order Confirmation: ADDC may accept or reject any Customer Order in its sole discretion. Customer Orders are subject to ADDC’s express written acceptance. ADDC will confirm orders either by confirming email and/or the issuance of an invoice to the Customer (“Order Confirmation”). Orders are subject to availability and are cancellable only by ADDC. ADDC is not responsible for pricing, typographical or other errors in any Quote or Order Confirmation and may cancel Customer Orders affected by such errors. The Customer may change or cancel a Customer Order only as expressly permitted under the CTS or via a separate written agreement with ADDC. ADDC’s acceptance of a Customer Order is expressly subject to the terms and conditions contained in the CTS.
(e) Controlling Contractual Documents: The CTS, Quote, and Order Confirmation collectively represent the terms of the sales agreement between ADDC and Customer (“Agreement”). The Agreement comprises the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement supersedes any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. ADDC expressly rejects Customer’s general terms and conditions of purchase, and ADDC’s fulfillment of Customer’s Order is on reliance of the CTS and does not constitute acceptance of any of other terms and conditions or serve to modify or amend the CTS. Customer’s acceptance of the Order Confirmation is a prerequisite to the purchase of the Products and shall operate as an acceptance of the CTS
(f) Payment Terms: Any Order Confirmation is expressly conditioned on the following payment terms.
(i) Available Products: Subject to Section 1(f)(iii), ADDC is not obligated to ship any Products contained in the Quote before payment in advance of shipping.
(ii) Made to Order Products: Any Product that the Quote or Order Confirmation indicates are MTO or Made to Order is expressly conditioned upon Customer’s advance payment of fifty percent (50%) of the amount listed in the Quote. The remaining balance due must be paid prior to shipment of the Products. Customer acknowledges that ADDC, in reliance on the Customer Order for MTO Products, must purchase the required materials and components and dedicate its limited internal resources and assembly capacity to manufacture the MTO Products. As a result, after the Customer makes the 50% advance payment, the Order is final, and Customer cannot cancel the Order without ADDC’s express written agreement. Moreover, any Customer payment made in advance of shipment of MTO Products is non-refundable.
(iii) Credit: Under no circumstances shall ADDC be obligated to grant credit terms to Customer. Any extension of credit shall be evidenced in advance by a separate written agreement signed by ADDC and Customer. ADDC reserves the right to cancel any sale or delay shipment where Customer fails to pay in advance of shipping for an Order. Otherwise, all Quotes, Customer Orders and Order Confirmation and Agreement are expressly conditioned upon payment in advance of ADDC’s obligation to deliver Products.
(iv) ADDC may delay shipment or cancel any order where the Customer has a receivable for a prior order or purchase.
Section 2 Cost of Delivery, Taxes and Other Charges. Customer shall pay the costs of shipping and delivery of the Products. Customer shall pay all sales, use, excise or similar taxes, tariffs or duties, value added taxes or other charges, which ADDC may be required to pay, or to collect and remit, to any Government (national, state or local) and which are imposed on or measured by the sale.
Section 3 Delivery
(a) Available Products will be delivered within a reasonable time after the Customer’s receipt of the Order Confirmation and ADDC’s receipt of full payment. With respect to Made to Order Products, ADDC will deliver the MTO Products within a reasonable time after the manufacture and testing of and payment for the MTO Products. Delivery dates given by ADDC are estimates only and are subject to shipping variations and requirements.
(b) Unless otherwise agreed in writing by the parties or reflected in the Order Confirmation, the place of delivery shall be ADDC’s New York or California locations (the “Delivery Point”). ADDC will use its standard methods for packaging and shipping such Products. At Customer’s election (and as reflected in the ADDC’s Customer Order Confirmation), Customer may elect to have its own carrier or shipping company transport the Products (which will be reflected in the Quote and/or Order Confirmation) provided the Customer’s carrier provides ADDC with delivery confirmation. Customer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Products at the Delivery Point.
Section 4 Transfer of Property and Risk of Loss. ADDC retains the right and title to the Products sold to Customer until ADDC is paid in full for the Products, including any taxes, excise or other charges. The risk of loss, including, but not limited to the risk of loss, theft, damage or destruction of the Products, transfers to Customer at the time that ADDC delivers the Product(s) to the Delivery Point.
Section 5 Inspection.
(a) Customer shall inspect the Products promptly upon receipt for nonconformity (including but not limited to nonconformity for quantity, quality, and/or defects). Failure by Customer to provide ADDC with written notice of a claim within 10 days from the date of Delivery shall constitute Customer’s waiver of all claims with respect to such Products.
(b) If Customer timely notifies ADDC of any nonconformity, ADDC shall, in its sole discretion, (i) issue an RMA for the replacement of such nonconforming Products with conforming Products (equivalent or better), or (ii) credit or refund the purchase price for such nonconforming Products, together with any reasonable third-party shipping and handling expenses actually incurred and paid by Customer in connection therewith. Customer shall ship, at its expense and risk of loss, the nonconforming Products to ADDC to the Delivery Point. If ADDC exercises its option to replace Nonconforming Products, ADDC shall, after receiving Customer’s shipment of nonconforming Products, ship to Customer, at Customer’s expense and risk of loss, the replaced Products to the Delivery Point.
(c) Customer acknowledges and agrees that the remedies in paragraph 5(b) are Customer’s exclusive remedies for nonconforming Products.
Section 6 No Set-Off. Customer shall have no right of set-off or withholding, and no deduction of any amounts due from Customer to ADDC shall be made without ADDC’s prior, express written approval.
Section 7 Patents. ADDC reserves the right to discontinue deliveries of any Products, the manufacture, sale or use of which would, in ADDC’s opinion, infringe upon any patent, trademark or design now or hereinafter issued, registered, or existing and under which ADDC does not own such right or is not a licensee.
Section 8 Limited Product Warranty.
(a) Limited Product Warranties. “Limited Product Warranty” means ADDC’s Limited Hardware Warranty, which can be found at https://addc.com/limited-warranty. Customer shall have the benefit of the Limited Product Warranty. The Limited Product Warranty shall for all purposes be deemed to be the only Product warranty ADDC provides to the Customer or any other person. Altered Products by Customer or person other than ADDC are excluded from the Limited Product Warranty. Products that are damaged due to use of Product with readers, chassis or systems not approved by ADDC are also excluded from the Limited Product Warranty. ADDC’s Limited Product Warranty is subject to change.
(b) Extended Product Warranties The Customer may purchase an extended warranty under the terms and conditions detailed on ADDC’s website (https://addc.com/comprehensive-warranty ) (“Extended Product Warranty”). Any Extended Product Warranty shall be mutually agreed to in writing and signed by ADDC.
(c) Limited Product Warranty is Sole Remedy. Customer’s sole remedy arising out of or in respect to an asserted breach of the Limited Product Warranty shall be ADDC’s repair or replacement the Product(s) with equivalent Products. Customer and any such other person taking the Product from the Customer shall have no other remedy or recourse of any kind whatever against ADDC.
(d) Warranty Procedure. The procedure regarding any warranty claims will be governed by the procedures provided on ADDC’s website governing ADDC’s Limited Product Warranty (https://addc.com/limited-warranty).
Section 9 Disclaimer Of All Other Warranties ADDC’S LIMITED PRODUCT WARRANTY IS THE ONLY WARRANTY MADE BY ADDC IN CONNECTION WITH THE PRODUCTS AND THE TRANSACTIONS CONTEMPLATED AS A RESULT OF THIS SALE. ADDC MAKES NO OTHER WARRANTIES OR REPRESENTATIONS TO CUSTOMER OR ANY OTHER PERSON OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, AND ADDC SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PRODUCTS SOLD HEREUNDER ARE SOLD ONLY TO THE SPECIFICATIONS SPECIFICALLY SET FORTH BY THE ADDC IN WRITING. MOREOVER, ADDC EXPRESSLY DISCLAIMS ANY OTHER EXPRESS OF IMPLIED WARRANTIES ALLEGEDLY ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. CUSTOMER ACKNOWLEDGES THAT IS HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY ADDC OR ANY OTHER INDIVIDUAL OR ENTITY ON ADDC’S BEHALF UNLESS CONTAINED IN A SEPARATE AGEEMENT WITH ADDC. ADDC’S SOLE OBLIGATION FOR A REMEDY TO CUSTOMER SHALL BE REPAIR OR REPLACEMENT OF NONCONFORMING PRODUCTS. THE CUSTOMER ASSUMES ALL RISK WHATSOEVER AS THE RESULT OF THE USE OF PRODUCTS PURCHASED, WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS OR SUBSTANCES.
Section 10 Limitation of Liability. No claim by Customer of any kind including, but not limited to, claims for indemnification, whether as to quality or amount of Product delivered or non-delivery, shall be greater in amount then the purchase price for the Products in respect of which damages are claimed. IN NO EVENT SHALL ADDC BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS OF BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, OR LOSS OF DATA, ARISING OUT OF, OR AS A RESULT OF, THE SALE, DELIVERY, SERVICING, USE OR LOSS OF THE PRODUCTS SOLD HEREUNDER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE.
Section 11 Excuses for Non-Performance If the manufacture, transfer or receipt of any Products covered hereby is prevented, restricted or interfered with by reason of any event beyond the reasonable control of the Party so affected, such Party shall be excused from making deliveries hereunder to the extent of such prevention, restriction or interference, and the Party shall not be liable to the other for default or delay in performing.
Section 12 ADDC’s Rights. If Customer fails in any manner to fulfill the terms and conditions hereof, ADDC may defer further shipments until such default is cured. Remedies provided herein shall be in addition to, and not in lieu of, other remedies that may be available to ADDC. If for any reason, the quantities of the Products covered hereby or of any materials used in the production of the Products reasonably available to ADDC shall be less than ADDC’s total needs for its own use and for sale, ADDC may allocate its available supply of Products among its existing or prospective purchasers and/or its own departments, divisions and affiliates in such manner ADDC deems proper in ADDC’s sole discretion, without thereby incurring liability on account of the method of allocation determined or its implementation or for failure to perform this Agreement.
Section 13 Governing Law. This Agreement shall be construed, and the respective rights and duties of Customer and ADDC shall be determined, according to the laws of the State of New York, without giving effect to its principles of conflicts of laws. The Parties expressly agree that the UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
Section 14 Dispute Resolution. Any claims or legal actions by one party against the other arising under the CTS and/or any sale and purchase of Products hereunder or any transaction contemplated hereby or concerning any rights under this Agreement shall be commenced and maintained in any state court located in Nassau County, New York or the Eastern District of New York, Central Islip Division. Both parties hereby submit to the jurisdiction and venue of any such court. THE PARTIES ALSO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.
Section 15 No Assignment. This contract between Customer and ADDC is not transferable by either party without the prior written consent of the other party, except that ADDC may assign this Agreement without Customer’s consent if the assignment is to a to an affiliate or if the assignment is carried out as part of a merger, restructuring, or reorganization, or sale or transfer of all or substantially all of ADDC’s assets.
Section 16 Compliance with Laws; Export Laws.
(a) General: Customer and ADDC shall comply with all applicable international, national, state, regional and local laws and regulations with respect to their performance of this Agreement.
(b) Export Regulation: The Products are subject to United States export control laws and regulations, including the Export Administration Regulations and potentially the International Traffic in Arms Regulations. At the time of purchase, if Customer intends to export the Product or incorporate any Product into another commodity that will be exported or reexported outside of the United States, the Customer will advise ADDC of the location and identity of the intended end user so that ADDC can conduct appropriate due diligence. In any event, the Customer shall comply with all applicable federal and foreign laws, regulations, and rules, and complete all required undertakings, and will not export the Products to persons on the Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List or the U.S. Department of Commerce Denied Persons List. Customer represents and warrants that it is not (and does not intend to sell to any other person that is) located in a country or territory (including without limitation, Russia, North Korea, Cuba, Iran, Syria, and Crimea) that is the subject of economic sanctions of the United States or other applicable jurisdictions.
(c) ADDC may withhold Delivery in cases where it has reason to believe that the transaction will violate applicable law, including export regulations.
