1. ACCEPTANCE AND MODIFICATION OF TERMS
Buyer’s acceptance of these terms and conditions shall be indicated by any of the following, whichever occurs first.
a. Buyers written acknowledgment:
b. Buyers acceptance of any shipment of all or any part of the goods specified on the front side hereof:
c. Buyers failure to cancel its purchase order in writing within five (5) days after receipt by facsimile or otherwise, of this invoice; or
d. Any other act or expression of acceptance by Buyer. Buyers acceptance is expressly limited to the terms and conditions hereof in their entirety without addition, modification or exception. Any other terms, condition, proposal modification hereafter submitted by Buyer (whether oral or in writing is hereby objected to and is hereby rejected by Seller, unless specifically accepted in writing. These terms and conditions shall constitute the final, complete and exclusive agreement of Buyer and Seller with respect to the subject matter hereof and shall supersede all prior offers, negotiations, understandings and agreements unless Buyer and Seller have executed a master contract which expressly supersedes and replaces these terms and conditions.
2. PRICES, PAYMENT TERMS AND TAXES
a. All goods sold pursuant to this invoice are at the prices set forth on the front side hereof. Failure to specifically list the prices on the front side shall result in an agreement to change Seller’s prevailing price from its price list.
b. In the event any price structure offered to Buyer may be based upon minimum expected purchases by Buyer. Buyer is expected to purchase no less than the minimum number of goods specified in such price structure within the period specified determined by the parties, or within a reasonable time if none is specified. If Buyer fails to purchase at least the minimum number of goods specified for the applicable period. Buyer shall pay to Seller the difference between the prices paid by Buyer and Sellers standard prices for the quantity actually purchased upon receipt of invoices from Seller.
c. Prices are exclusive of all government excises, sales, use, occupational or like taxes, duties, fees or charges now in force or enacted in the future. Any such tax, duty, fee or charge of any nature whatsoever imposed by the government authority on, or measured by, the transaction between Seller and Buyer shall be paid by Buyer in addition to the prices quoted or invoiced. In the event that Seller is required to pay any such tax,duty, fee or charged at the time of sale or thereafter, Buyer shall reimburse Seller therefor.
d. Buyer shall, without setoff or adjustment, pay Seller in full in Jamaican Dollars for each delivery of goods. Unless otherwise stated to the contrary on the front side hereof, payment terms shall be C.O.D. In the event any account becomes 30 days past due, it shall be subject to a monthly interest charge of 3% per month. In the event the Buyer fails to timely pay this or other invoice, Seller shall have the right in addition to all other remedies it may have at law or in equity, to cancel this or any other outstanding purchase order which has been previously accepted by Seller.
a. The time of delivery is the time the goods to be delivered are picked up by Buyer or Buyer’s agent.
b. Title to the goods shall pass to Buyer upon delivery of the goods by Seller to Buyer’s agent. Upon delivery, Buyer shall be responsible for and bear the entire risk of loss of damage to the goods.
c. The Seller retains an insurable interest in the goods up until the Buyer’s liability for the goods with the Seller is liquidated.
4. SHIPMENT. Delivery dates provided or confirmed by Seller are approximate only. Delivery can be made as many 15 days prior to or as many as 30 days after the schedule delivery date. Unless otherwise specified, the good shall be shipped in standard commercial packaging. When special or export packaging is requested, or in the opinion of Seller, required under the circumstances, the cost of the same, if not set forth on the invoice, will be separately invoiced.
5. SECURITY INTEREST. Seller reserves and Buyer hereby grants to Seller, a purchase money security interest in the goods sold and the proceeds thereof, in the amount of the purchase price. In the event of default by Buyer in any of its obligations to Seller, Seller shall have the right to repossess the goods sold hereunder without liability to Buyer. In such event, Buyer agrees to make the
goods available to Seller so that Seller can repossess them without breach of the peace. On request of Seller, Buyer will execute financing statements and any other instrument that Seller may request to perfect Seller’s security interest. Buyer hereby grants Seller a limited power of attorney to execute all UCC forms necessary to perfect such security interest.
6. SALE CONVEYS NO LICENSE. The goods are offered for sale and are sold by Seller subject in every case to the condition that such sale does not convey any license, expressly or by implication, estoppels,or otherwise, under any patent or other intellectual property claim with respect to which Seller can grant licenses covering complete equipment, or any assembly, circuit combination, method of process in which any such goods are used as components. Seller expressly reserves all its rights under such patent or other intellectual property claims.
7. INSPECTION. Buyer shall have 30 days after delivery to inspect the goods which are the subject of this invoice. If any of the goods are defective and within the terms of the warranty set forth below, Buyer shall within such 30 days period, notify Seller, obtain Seller’s written permission to return the particular goods and return such defective goods to Seller, transportation prepaid and insured, in the same condition as delivered and in the same or an equivalent shipping container with a description of such defect.
8. LIMITED WARRANTY.
a. For all goods for which the manufacturer provides a warranty, Seller
makes no warranty of any kind. Rather, Seller will act as Buyer’s agent (where applicable) for the sole purpose of making a claim on the manufacturer’s warranty, except that Seller has no obligation to commence litigation or incur any out of pocket cost on Buyer’s behalf.
b. For goods for which the manufacturer’s warranty Seller warrants that
the goods sold will be free from defects in material and workmanship for a period of thirty days from delivery to Buyer at the F.O.B. for memory and CPUs, and one year from delivery at the F.O.B. for all other goods. The liability of Seller hereunder shall be limited to replacing or repairing at its sole option, any defective goods which are returned to the F.O.B. stated on the face of this invoice (or, at Seller’s sole option, refunding the purchase price of such goods). In no case are good to be returned without first obtaining written permission from Seller.
c. Goods or parts that have been subject to abuse, misuse, accident,
alteration, neglect, unauthorized repair or installation are not covered by warranty. Seller shall make the final determination as to the existence and cause of any alleged defect. No warranty is made with respect to customer equipment or goods produced to Buyer’s specifications except as specifically stated in writing by Seller in the contract for such custom goods.
d. This warranty is the only warranty made by Seller with respect to the
goods purchased or delivered hereunder and may be modified or amended only by a written instrument signed by a duly authorized officer of Seller and accept by Buyer.
e. EXCEPT AS PROVIDED ABOVE. SELLER MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, AND SELLER EXPRESSLY EXCLUDES AND DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. LIMITATION OF LIABILITY.
a. Seller shall not be liable for any loss, damages, or penality resulting
from delay in delivery or failure to deliver when such delay or failure to deliver is due to causes beyond the reasonable control of Seller, including but not limited to supplier delays or shortages, acts of God, labor unrest, fire, explosion, windstorm or earthquake. In the event of any such delay, at Seller’s sole option, the delivery date may be extended for a period equal to the delay or Seller may terminate this order without liability to Buyer or Seller.
b. SELLER’S LIABILITY UNDER, FOR BREACH OF,OR ARISING OUT
OF THIS AGREEMENT AND/OR SALE SHALL BE LIMITED TO REFUND THE PURCHASE PRICE. IN NO EVENT SHALL SELLER BE LIABLE FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS BY BUYER. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL CONSEQUENTIAL, INCIDENTAL, INDIRECT OR OTHE DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFIT) WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED. WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, BREACH OF
WARRANTY, NEGLIGENCE OR UNDER ANY OTHER THEORY OF LIABILITY. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD PARTY CLAIMS AGAINST BUYER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. SUBSTITUTIONS AND MODIFICATIONS. Seller shall have the right to make substitutions and modifications in the specification of goods sold by Seller provided that such substitutions or modifications will not materially affect overall performance of the goods.
a. For goods carried by Seller in stock, in the event Buyer cancels its Purchase Orders or otherwise defaults in honoring its Purchase Orders. Seller is entitled to receive payment from Buyer, as liquidated damages, an amount equal to 10% of the total purchase price of the goods in question. For special order goods, in the event of such default or failure to honor, Seller shall be entitled to all rights and remedies available to it under the law.
b. No cancellation for cause by Buyer shall be effective unless Seller shall have failed to correct such alleged default within thirty (30) days after receipt by Seller of written notice setting forth in detail all such instances of default.
c. In the event Seller refuses to deliver goods that are subject to this agreement in violation of thereof. Buyer’s sole remedy shall be to cover and seek damages, if any, for the increased cost of goods by virtue of the breach and cover. Under no circumstances, however, shall Seller be liable for damages in an amount or nature excluded by paragraph 8(b) above.
12. ALLOCATION. In the event of shortage of supply, in addition to the provisions of paragraph 8(a) above, Seller reserves the right to allocate its available goods, including the type of goods which are subject of this invoice, among groups of similar customers based on customer need or otherwise as it may choose, in its sole discretion, whether prior to or following delivery to Buyer of this invoice. Such allocation shall be deemed a breach or failure to perform by Seller.
13. BANKRUPTCY. If Buyer (i) becomes bankrupt or insolvent; (ii) compounds with his creditors; (iii) commences to be wound up, or; (iv) suffers a receiver to be appointed. Seller shall be at liberty, by providing notice in writing, to cancel this contract without judicial intervention or declaration of default of Buyer and without prejudice to any right or remedy which shall have accrued or shall accrue thereafter to Seller.
14. ACCEPTANCE BY BUYER; ENTIRE AGREEMENT.
a. The terms and condition set forth herein and any master agreement between the parties constitute the entire agreement between Seller and Buyer. Seller shall not be bound by any terms of Buyer’s purchase order which are inconsistent with the terms set forth herein and all such inconsistent terms are hereby objected to and rejected.
b. This contract may not be modified, supplemented, qualified or interpreted by any trade usage or prior course of dealing.
c. Buyer hereby acknowledges that it has not entered into this contract in reliance upon any warranty or representation by any person or entity except for the warranties or representations specifically set forth herein.
15. WAIVER. The failure by Seller to enforce at any time, any of the provisions of this contract, or to exercise any election or option provided herein, or to require at any time, the performance by Buyer of any of the provisions herein, shall not in any way be construed as a waiver of such provisions.
16. ERRORS. Stenographic and clerical in sales made under this contract are subject to correction.
17. ATTORNEY’S FEES. Reasonable attorney’s fees and cost shall be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of this Agreement.
18. REMEDIES. Sellers remedies stated herein are in addition to all other remedies available to Seller at law or in equity or under contract.