TERMS AND CONDITIONS OF SALE
Unless otherwise specifically agreed to in writing by Seller, these AVID Terms and Conditions of Sale (the “Agreement”) shall apply to any and all orders placed by Buyer for products of Seller (the “Product” or “Products”). In this Agreement, AVID is referred to as “Seller” and the party to whom Seller’s order acknowledgement is addressed is referred to as “Buyer.”
- ACCEPTANCE OF ORDERS. Seller's acceptance of all orders and all offers and sales by Seller are subject to and expressly conditioned upon Buyer's assent to the terms and conditions of this Agreement. The Agreement consists of these sales terms and conditions, Seller’s quotation, if any, and Seller’s order acknowledgement. Buyer's acceptance of any offer by Seller must be made on such terms and conditions exactly as offered by Seller. Any of Buyer's terms and conditions which are different from or in addition to those contained in this Agreement are objected to by Seller and shall be of no effect unless specifically agreed to in writing by Seller. Commencement of performance or shipment shall not be construed as acceptance of any of Buyer's terms and conditions which are different from or in addition to those contained in the Agreement. If a contract is not earlier formed by mutual agreement in writing, acceptance by Buyer of Products shall be deemed Buyer’s assent to all of the terms and conditions of this Agreement.
- CONFIDENTIALITY. All information, including quotations, specifications, drawings, prints, schematics, and any other engineering, technical or pricing data or information submitted by Seller to Buyer related to any order for Products are the confidential and proprietary information of Seller; and Buyer and its employees, agents or other parties for whom Buyer is responsible may not disclose Seller’s confidential and proprietary information to any third parties, or use Seller’s confidential and proprietary information for its own account or that of any third party, except in the performance of the order.
- PAYMENT TERMS. All payments shall be in U.S. dollars. Buyer shall pay for Products in cash upon delivery, unless an earlier or later time for payment is specified in the order acknowledgement (in which case payment shall be due at the time so specified). Each shipment shall be considered a separate and independent transaction and payment for each shipment shall be due accordingly.
Seller may, at its option, elect to extend credit to Buyer. If Seller extends credit to Buyer, invoices will be issued upon shipment and payment shall be due in full within thirty (30) days from the invoice date or such other date specified in the Agreement. Seller reserves the right to change the amount of or withdraw any credit extended to Buyer. Time is of the essence with respect to all payments.
Amounts not paid when due shall be subject to interest at the rate of one and one-half percent (1½%) per month until fully paid, or, the maximum rate permitted by applicable state law.
- DELIVERY, TITLE AND RISK OF LOSS. Unless otherwise agreed to in writing by Seller, Products shall be shipped EXW Seller’s facilities or inventory hub (Incoterms 2010) to any location designated by Buyer and shall be deemed delivered to Buyer when delivered to the transportation company at the shipping point. Unless otherwise agreed to in writing by Seller, all transportation charges and expenses shall be paid by Buyer, including the cost of any insurance against loss or damage in transit which Seller may obtain at Buyer’s written request. Seller reserves the right to ship Products freight collect.
Subject to the security interest reserved to Seller, title and risk of loss and/or damage to Products shall pass to Buyer upon delivery of the Products to the transportation company at the shipping point. Confiscation or destruction of or damage to Products shall not release, reduce or in any way affect the liability of Buyer. In the event Buyer rejects or revokes acceptance of any Products for any reason, all risk of loss and/or damage to such Products shall nonetheless remain with Buyer unless and until the same are returned at Buyer's expense to such place as Seller may designate in writing.
All Products must be inspected upon receipt and claims filed by Buyer with the transportation company when there is evidence of shipping damage, either concealed or external.
- PURCHASE MONEY SECURITY INTEREST. Seller reserves a Purchase Money Security Interest under the Uniform Commercial Code in the Products and in the proceeds derived from such Products. Buyer shall execute such documents as Seller may require, including, but not limited to: (i) a Security Agreement; and (ii) one or more Financing Statements. The Buyer agrees and hereby does appoint the Seller as attorney in fact to do, at the option of Seller, all acts and things the Seller may deem desirable to perfect and continue to perfect the Purchase Money Security Interest, including Seller's authority to file financing statements naming Buyer as debtor and Seller as secured party without Buyer's signature in those states where such filings are permitted. These interests shall be satisfied by payment in full of the price.
- PERFORMANCE. Seller will make a reasonable effort to observe the dates specified herein or such later dates as may be agreed to by Buyer for delivery or other performance, but Seller shall not be liable for any delay in delivery or failure to perform due to acceptance of prior orders, strike, lockout, riot, war, fire, act of God, accident, delays caused by any subcontractor or supplier or by Buyer, technical difficulties, failure or breakdown of machinery or components necessary for order completion, inability to obtain or substantial rises in the price of labor or materials or manufacturing facilities, curtailment of or failure to obtain sufficient electrical or other energy supplies, or compliance with any law, regulation, order or direction, whether valid or invalid, of any governmental authority or instrumentality thereof, or due to any circumstances or any causes beyond its reasonable control, whether similar or dissimilar to the foregoing and whether or not foreseen.
Buyer agrees that any delay in delivery or failure to deliver or perform any part of this Agreement shall not be grounds for Buyer to terminate or refuse to comply with any provisions hereof and no penalty of any kind shall be effective against Seller for such delay or failure; provided, however, that if the delay or failure extends beyond six (6) months from the originally scheduled date either party may, with written notice to the other, terminate this Agreement without further liability for the unperformed part of this Agreement.
- ACCEPTANCE. All Products delivered hereunder shall be deemed accepted by Buyer as conforming to this Agreement, and Buyer shall have no right to revoke any acceptance, unless written notice of the claimed nonconformity is received by Seller within thirty (30) days of delivery thereof. In the event that the Buyer gives such notice of nonconformity, Buyer shall afford Seller (i) reasonable opportunity to inspect the alleged nonconforming Products; and (ii) a reasonable opportunity to provide substitute conforming Products.
- DEFAULT AND TERMINATION. Buyer may terminate this Agreement if Seller materially defaults in the performance of its obligations hereunder and fails to cure such default within sixty (60) days after written notice thereof from Buyer. Such termination shall be Buyer's sole remedy in the event of a default by Seller.
Buyer shall be deemed in material default under this Agreement if Buyer fails to perform any of its obligations hereunder, fails to pay any amounts when due hereunder, cancels or attempts to cancel this Agreement prior to delivery or refuses delivery or otherwise fails to perform any of its obligations hereunder or fails to pay Seller any sums due under any other agreement or otherwise. In the event of a material default by Buyer, Seller may, upon written notice to Buyer, (1) suspend its performance and withhold shipments, in whole or in part, (2) terminate this Agreement, (3) declare all sums owing to Seller immediately due and payable and/or (4) recall Products in transit, retake same and repossess any Products held by Seller for Buyer's account, without the necessity of any other proceedings, and Buyer agrees that all Products so recalled, taken or repossessed shall be the property of Seller, provided that Buyer is given credit therefor. Exercise of any of the foregoing remedies by Seller shall not preclude exercise of any of the others, and neither the existence nor exercise of such remedies shall be construed as limiting, in any manner, any of the rights or remedies available to Seller under the Uniform Commercial Code or other laws.
- LIMITED WARRANTY. Seller's liability and the sole remedy under this warranty is limited to the applicable warranty period for the Product and to repair or replacement of items determined by Seller to be defective or, at Seller's sole option, refund of the purchase price paid Seller for such items. Seller shall have no liability under this warranty unless Seller is notified in writing within sixty (60) days after discovery of the defect and the defective items are promptly returned to Seller, freight prepaid, and received by Seller.
This warranty shall not apply to any defect or failure to perform resulting from acts of God; fire; vandalism; civil disturbances; abuse; alteration; accident; misapplication; improper operation; abuse or contamination, whether internal or external.
THE FOREGOING WARRANTY PROVISIONS ARE EXCLUSIVE AND ARE GIVEN AND ACCEPTED IN LIEU OF ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY AGAINST INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Remedies for any breach of warranty are limited to those provided herein to the exclusion of all other remedies, including, without limitation, incidental or consequential damages. No warranty or agreement varying or extending the foregoing warranty and limitation of remedy provisions may be relied upon unless it is in writing and signed by the President of Seller. No representation or affirmation of Seller, whether by words or action, shall be construed as a warranty.
- LIMITATION OF LIABILITY AND CLAIMS. SELLER'S AGGREGATE LIABILITY IN DAMAGES OR OTHERWISE SHALL IN NO EVENT EXCEED THE AMOUNT, IF ANY, RECEIVED BY SELLER HEREUNDER. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL LOSS OR DAMAGES OF ANY KIND, HOWEVER CAUSED, OR ANY PUNITIVE, EXEMPLARY OR OTHER DAMAGES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR PRODUCTS OR SERVICES FURNISHED BY SELLER MAY BE BROUGHT BY BUYER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUED.
- TAXES. Unless expressly stated in Seller's invoice, the purchase price for the Products furnished by Seller excludes all governmental or brokerage taxes, duties, fees, charges or assessments. Seller may elect to add any such taxes, duties, fees, charges or assessments to the invoice amount payable to Seller by Buyer. Buyer must provide Seller with documentation acceptable to Seller of any exemptions claimed from taxes, duties, permits, fees, charges or assessments in advance.
- INDEMNITY. Buyer agrees to indemnify and hold harmless Seller and its vendors from any and all claims or liabilities asserted against Seller or its vendors in connection with the manufacture, sale, delivery, re-sale, or repair or use of any Product furnished under these governing Terms & Conditions arising in whole or in part out of or by reason of the failure of Buyer, its agents, servants, employees or customers to follow directions, instructions, warnings or recommendations furnished by Seller or its vendors in connection with such Products, or by reason of the failure of Buyer, its agents, servants, employees or customers to comply with all federal, state or local laws and regulations applicable to such Products, or by reason of the negligence of Buyer, its agents, servants, employees or customers.
- ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the parties and supersedes all prior negotiations, proposals, agreements and understandings, whether oral or written, relating to the Products to be purchased hereunder or otherwise relating to the subject matter of this Agreement. Any representation, warranty, course of dealing or trade usage not expressly contained or referenced herein shall not be binding on Seller.
- ATTORNEY'S FEES. In the event of default in payment of the purchase price or any part thereof, Buyer agrees to pay Seller's expenses, including reasonable attorney's fees and expenses, incurred by Seller in enforcing payment thereof, including all expenses incurred in connection with any arbitration or judicial proceeding.
- ASSIGNMENT. Buyer shall not assign or transfer any rights or claims under this Agreement without the prior written consent of Seller, and any purported assignment made without such consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assigns of the parties.
By checking the terms box, you agree that you have read and understand the Terms and Conditions set forth in this document and agree to them in their entirety.