JACO ELECTRONICS - TERMS & CONDITIONS
THESE TERMS AND CONDITIONS GOVERN THE SALE OF ALL PRODUCTS AND SERVICES (“PRODUCTS”) BY JACO ELECTRONICS, INC. AND ITS DIVISIONS (“SELLER”) AND APPLY NOTWITHSTANDING ANY CONFLICTING, CONTRARY OR ADDITIONAL TERMS AND CONDITIONS IN ANY PURCHASE ORDER OR OTHER DOCUMENT OR COMMUNICATION (“PURCHASE ORDER”) FROM “BUYER” (COMPANY, CORPORATION, AGENCY, OR INDIVIDUAL TO WHOM THIS QUOTE IS ADDRESSED). THESE TERMS AND CONDITIONS MAY ONLY BE WAIVED OR MODIFIED IN A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER. NEITHER SELLER’S ACKNOWLEDGMENT OF A PURCHASE ORDER NOR SELLER’S FAILURE TO OBJECT TO CONFLICTING, CONTRARY OR ADDITIONAL TERMS AND CONDITIONS IN A PURCHASE ORDER SHALL BE DEEMED AN ACCEPTANCE OF SUCH TERMS AND CONDITIONS OR A WAIVER OF THE PROVISIONS HEREOF.
1. ORDERS. Orders shall be initiated by Buyer issuing a Purchase Order. Orders shall identify the Products, unit quantities, part numbers, descriptions, applicable prices and requested delivery dates. All orders are subject to acceptance by Seller. Notwithstanding any provision of these Terms and Conditions to the contrary, orders for special, custom, value-added and other non-standard Products are identified by Seller as “NCNR” or “Non-Cancelable and Non-Returnable.”
2. PRICES. Prices shall be in US dollars, as specified by Seller, and are valid for only thirty (30) days. Prices are exclusive of taxes, impositions and other charges, including: sales, use, excise, value added and similar taxes or charges imposed by any government authority, international shipping charges, forwarding agent’s and broker’s fees, consular fees, document fees and import duties or levies.
3. TERMS OF PAYMENT. Payment shall be net thirty (30) days from date of invoice. Programs for special, custom, value-added and other non-standard products shall be subject to a milestone-based payment schedule to be negotiated with Buyer. Orders are subject to credit approval by Seller, which may in its sole discretion at any time change the terms of Buyer's credit, require payment in cash, bank wire transfer or by official bank check and/or require payment of any or all amounts due or to become due for Buyer’s order before shipment of any or all of the Products. If Seller believes in good faith that Buyer's ability to make payments may be impaired or if Buyer shall fail to pay any invoice when due, Seller may suspend delivery of any order or any remaining balance thereof until such payment is made or cancel any order or any remaining balance thereof, and Buyer shall remain liable to pay for any Products already shipped and all Non-Standard Products ordered by Buyer.Buyer agrees to submit such financial information from time to time as may be reasonably requested by Seller for the establishment and/or continuation of credit terms. Checks are accepted subject to collection and the date of collection shall be deemed the date of payment. Any check received from Buyer may be applied by Seller against any obligation owing from Buyer to Seller, regardless of any statement appearing on or referring to such check, without discharging Buyer's liability for any additional amounts owing from Buyer to Seller, and the acceptance by Seller of such check shall not constitute a waiver of Seller's right to pursue the collection of any remaining balance. Buyer shall pay interest on any invoice not paid when due from the due date to the date of payment at the rate of one and one-half (1-1/2%) percent per month or such lower rate as may be the maximum allowable by law. If Buyer fails to make payment when due, Seller may pursue any legal or equitable remedies, in which event Seller shall be entitled to reimbursement for costs of collection and reasonable attorneys fees.
4. DELIVERY & TITLE. All shipments by Seller are F.O.B. point of origin and all transportation charges shall be paid by Buyer in addition to the price of the Products. Delivery of the Products to the carrier shall constitute delivery to Buyer and title and risk of loss shall thereupon pass to Buyer. Selection of the carrier and delivery route shall be made by Seller unless specified by Buyer. Seller shall use reasonable efforts to initiate shipment and schedule delivery as close as possible to Buyer’s requested delivery dates. Buyer acknowledges that delivery dates provided by Seller are estimates only and that Seller is not liable for failure to deliver on such dates.
5. ACCEPTANCE OF PRODUCTS & PRODUCT RETURNS. Inspection and acceptance of the Products shall be Buyer’s responsibility. Buyer is deemed to have accepted the Products unless written notice of rejection is received by Seller within seven (7) days after delivery of the Products. Buyer waives any right to revoke acceptance thereafter. Buyer shall report any discrepancy in shipment quantity or damage within seven (7) days after delivery. No return of Products shall be accepted by Seller without a Return Material Authorization (“RMA”) Number, which may be issued by Seller's in its sole discretion. Returned Products must be in original manufacturer’s shipping cartons complete with all packing materials. All Products for return shall be returned freight prepaid in the manner specified in the RMA. If returned Products are claimed to be defective, a complete description of the nature of the defect must be included with the returned Products. Products not eligible for return shall be returned to Buyer, freight collect.
6. SELLER'S LIMITED 12 MONTH WARRANTY. Seller warrants to Buyer that upon delivery to Buyer the Products purchased hereunder shall conform to the applicable manufacturer's specifications for such Products and that any value-added work performed by Seller on such Products shall conform to applicable Buyer's specifications relating to such work associated with normal usage.
The following is NOT covered by this Warranty: (i) Normal wear and tear of Product use; (ii) Misuse, lack of care, mishandling, accident, abuse, or other abnormal use; (iii) Use of the Product other than for its intended purpose; (iv) Damage caused by improper or unauthorized repair or maintenance; and (v) Product that has been modified or altered.
Seller makes no other warranty, express or implied, with respect to the Products.
7. CHANGES. Orders for programs with special, custom, value-added and other non-standard products may not be changed within forty-five (45) days of the estimated shipment date. Orders may be changed between forty-five (45) and ninety (90) days with Sellers’ approval and at its sole discretion, from the estimated shipment date. Buyer shall be responsible for all costs and markups incurred on materials, WIP, and labor.
8. LIMITATION PERIOD & ARBITRATION . Subject to any of the limitations expressed in the applicable warranty, no action by Buyer may be brought at any time for any reason more than twelve (12) months after the facts occurred upon which the cause of actions arose. Any controversy or claim arising out of or relating to these terms and conditions, or the breach thereof, shall be settled by arbitration in accordance with the rules of the American Arbitration Association, in the state of New York, USA. In no event shall the demand for arbitration be made after the date when such dispute would be barred by the limitation period stated above. The parties hereby grant the arbitrator(s) the authority to grant either side costs and/or attorneys’ fees. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
9. FORCE MAJEURE. Seller shall not be liable for failure to fulfill its obligations herein or for delays in delivery due to causes beyond its reasonable control, including, but not limited to, acts of God, natural disasters, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, riots, war, acts of terrorism, delays in transportation or inability to obtain labor or materials through its regular sources. Seller’s time for performance of any such obligation shall be extended for the time period of such delay or Seller may, at its option, cancel any order or remaining part thereof without liability by giving notice of such cancellation to Buyer.
10. EXPORT CONTROL. The sale, resale or other disposition of Products and any related technology or documentation are subject to the export control laws, regulations and orders of the United States and may be subject to the export and/or import control laws and regulations of other countries. Buyer agrees to comply with all such laws, regulations and orders and acknowledges that it shall not directly or indirectly export any Products to any country to which such export or transmission is restricted or prohibited. Buyer acknowledges its responsibility to obtain any license to export, re-export or import as may be required.
11. LIMITATION OF LIABILITIES. BUYER SHALL NOT IN ANY EVENT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION COSTS, REMOVAL AND/OR REINSTALLATION COSTS, REPROCUREMENT COSTS, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO REPUTATION OR LOSS OF CUSTOMERS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER'S RECOVERY FROM SELLER FOR ANY CLAIM SHALL NOT EXCEED BUYER'S PURCHASE PRICE FOR THE PRODUCT GIVING RISE TO SUCH CLAIM IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. SELLER SHALL NOT BE LIABLE FOR AND BUYER SHALL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ANY CLAIMS BASED ON SELLER’S COMPLIANCE WITH BUYER’S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS, OR MODIFICATION OF ANY PRODUCTS BY PARTIES OTHER THAN SELLER, OR USE IN COMBINATION WITH OTHER PRODUCTS.