General Sales Terms at AGS-Electronics
Below you will find the GENERAL SALES TERMS AND CONDITIONS of AGS-TECH Inc. under which its electronic products business unit AGS-Electronics is covered. Seller AGS-TECH Inc. does submit a copy of these terms and conditions along with offers and quotes to its customers. These are general sales terms and conditions of seller AGS-TECH Inc. and should not be considered to be valid for every transaction. However please note that for any deviations or modifications to these general sales terms and conditions, buyers need to contact AGS-TECH Inc and obtain approval in writing. If no mutually agreed modified version of sales terms and conditions exist, these terms and conditions of AGS-TECH Inc. stated below shall apply. We also want to emphasize that the primary goal of AGS-TECH Inc. is to provide products and services that meet or exceed customers expectations, and make its customers globally competitive. Therefore the relationship of AGS-TECH Inc. will always be more of a long term sincere relationship and partnership with its customers and not one that is based on pure formality.
1. ACCEPTANCE. This proposal does not constitute an offer, but is an invitation to the Buyer to place an order which invitation shall be open for thirty (30) days. All orders are made subject to final written acceptance by AGS-TECH, INC. (hereinafter referred to as “seller”)
The terms and conditions herein shall apply to and govern buyer’s order, and, in case of any inconsistency between these terms and conditions and buyer’s order, the terms and conditions herein shall prevail. Seller objects to the inclusion of any different or additional terms proposed by the buyer in its offer and if they are included in buyer’s acceptance, a contract for sale will result upon seller’s terms and conditions stated herein.
2. DELIVERY. The quoted delivery date is our best estimate based upon present scheduling requirements and may be deviated from without liability by a reasonably longer period at Seller’s discretion due to manufacturing contingencies. Seller shall not be liable for failure to deliver on any specific date or dates within any specific period of time in the event of hardships or causes beyond its control including, but not limited to, acts of God or the public enemy, governmental orders, restrictions or priorities, fires, floods, strikes, or other work stoppages, accidents, catastrophes, war conditions, riot or civil commotion, labor, material and/or transportation shortages, legal interferences or prohibitions, embargoes, defaults or delays of subcontractors and suppliers, or similar or different causes which render performance or timely delivery difficult or impossible; and, in any such event Seller shall not incur or be subject to any liability whatsoever. Buyer shall not by reason of any such cause, have any right of cancellation, nor any right to suspend, delay or otherwise prevent Seller from manufacturing, shipping or storing for Buyer’s account any material or other goods purchased hereunder, nor to withhold payment therefore. Buyer’s acceptance of delivery shall constitute a waiver of any claim for delay. If goods ready for shipment on or after the scheduled delivery date cannot be shipped because of Buyer’s request or for any other reason beyond Seller’s control, payment shall be made within thirty (30) days after Buyer has been notified that the same
are ready for shipment, unless otherwise agreed in writing between Buyer and Seller. If at any time shipment is deferred or delayed, Buyer shall store the same at Buyer’s risk and expense and, if Buyer fails or refuses to store the same, Seller shall have the right to do so at Buyer’s risk and expense.
3. FREIGHT/RISK OF LOSS. Unless otherwise indicated, all shipments are made FOB, place of shipment and Buyer agrees to pay all charges for transportation, including insurance. Buyer assumes all risk of loss and damage from the time the goods are deposited with the carrier
4. INSPECTION/REJECTION. Buyer shall have ten (10) days after receipt of goods to inspect and either accept or reject. If goods are rejected, written notice of rejection and the specific reasons therefore must be sent to seller within such ten (10) day period after receipt. Failure to reject goods or to notify Seller of errors, shortages, or other non-compliance with the agreement within such ten (10) day period shall constitute irrevocable acceptance of goods and admission that they fully comply with the Agreement.
5. NON-RECURRING EXPENSE (NRE), DEFINITION/PAYMENT. Whenever used in the Seller’s quotation, acknowledgement or other communication, NRE is defined as a one-time Buyer borne cost for (a) the modification or adaptation of Seller owned tooling to allow manufacturing to Buyer’s exact requirements, or (b) the analysis and precise definition of the Buyer’s requirements. Buyer shall further pay for any necessary repairs or replacements to tools after tool life specified by Seller.
At such time that Non-Recurring Expenses are specified by the Seller, Buyer shall pay 50% thereof with its Purchase Order and the balance thereof upon Buyer’s approval of the design, prototype or samples produced.
6. PRICES AND TAXES. Orders are accepted on the basis of prices listed. Any added expense incurred by the Seller because of delays in receipt of details, specifications, or other pertinent information, or because of changes requested by the Buyer shall be chargeable to the Buyer and payable upon invoice. The Buyer in addition to the purchase price shall assume and pay any and all sales, use, excise, license, property and/or other taxes and fees together with any interest and penalties thereon and expenses in connection therewith growing out of, relating to, affecting or pertaining to, the sale of property, service other subject matter of this order, and Buyer shall indemnify Seller and save and hold Seller harmless from and against any claim, demand or liability for and such tax or taxes, interest or
7. PAYMENT TERMS. Items ordered will be billed as shipments made and payment to Seller shall be net cash in United States funds, thirty (30) days from date of shipment by the Seller, unless otherwise specified in writing. No cash discount will be allowed. If Buyer delays manufacture or shipment, payment of the percentage of completion (based on the contract price) shall become immediately due.
8. LATE CHARGE. If invoices are not paid when due, Buyer agrees to pay late charges on the unpaid delinquent balance at the rate of 1 ½% thereof per month.
9. COST OF COLLECTION. Buyer agrees to pay any and all costs including but not limited to all attorney's fees, in the event Seller must refer Buyer’s account to an attorney for collection or enforcement of any of the terms and conditions of sale.
10. SECURITY INTEREST. Until payment is received in full, Seller shall retain a security interest in the goods hereunder and the Buyer authorizes Seller to execute on Buyer’s behalf a standard financing statement setting forth Seller’s security interest to be filed under the applicable filing provisions or any other document necessary to perfect Seller’s security interest in the goods in any state, country or jurisdiction. Upon Seller’s request, Buyer shall promptly execute any such documentation.
11. WARRANTY. Seller warrants that the component goods sold will meet the specifications set forth in writing by Seller. If Buyer’s order is for a complete optical system, from image to object, and Buyer provides all information to its requirements and use, Seller also warrants performance of the system, within the characteristics set forth in writing by Seller.
Seller makes no warranty of fitness or merchantability and no warranty oral or written, express or implied, except as specifically set forth herein. The provisions and specifications attached hereto are descriptive only and are not to be understood as warranties. Seller’s warranty shall not apply if persons other than the seller have without written consent of seller performed any work or made any alteration in the goods supplied by the seller.
Seller shall under no circumstances be liable for any loss of profits or other economic loss, or any special, indirect consequential damages arising from the loss of production or other damages or losses owing to the failure of seller’s goods or the supply by the seller of defective goods, or by reason of any other breach of this contract by seller. Buyer hereby waives any right to damages in the events it rescinds this contract for breach of warranty. This warranty extends only to the original buyer. No subsequent buyer or user is covered.
12. INDEMNIFICATION. Buyer agrees to indemnify Seller and save it harmless from and against any claim, demand or liability arising out of or in connection with the sale of the goods by Seller or the use of the goods by Buyer and this includes but is not limited to damage to property or persons. Buyer agrees to defend at its expense any suit against Seller respecting infringement (including contributory infringement) of any United States or other patent covering all or parts of the goods furnished under an order, its manufacture and/or its use and will pay costs, fees and/or damages awarded against Seller for such infringement by any final court decision; provided Seller notifies Buyer promptly of any charge of or suit for such infringement and tenders Buyer the defense of such suit; Seller having the right to be represented in such defense at Seller’s expense.
13. PROPRIETARY DATA. All specifications and technical material submitted by Seller and all inventions and discoveries made by Seller in carrying out any transaction based thereon are the property of Seller and are confidential and shall not be disclosed to or discussed with others. All such specifications and technical material submitted with this order or in carrying out any transaction based hereon shall be returned to Seller on demand. Descriptive matter furnished with this order is not binding as to detail unless certified correct by Seller in acknowledging an order relating thereto.
14. AGREEMENT MODIFICATIONS. The terms and conditions contained herein and any other terms and conditions stated in Seller’s proposal or specifications attached hereto, if any, shall constitute the complete agreement between Seller and Buyer and shall supersede all prior oral or written statements or understandings of any kind whatsoever made by the parties or their representatives. No statement subsequent to the acceptance of this order purporting to modify the said terms and conditions shall be binding unless consented to in writing by a duly authorized officer or manager of Seller.
15. CANCELLATION AND BREACH. This order shall not be countermanded, cancelled or altered by the Buyer, nor shall the Buyer otherwise cause the work or shipment to be delayed, except with the written consent and upon the terms and conditions approved by the Seller in writing. Such consent will be granted if at all, only upon the condition that Buyer shall pay Seller reasonable cancellation charges, which shall include compensation for the costs incurred, overhead, and lost profits. In event that the Buyer cancels this contract without Seller’s written consent or breaches this contract by failing to adhere to Seller for breach of contract and shall pay Sellers damages resulting from such breach including, but not limited to, lost profits, direct and indirect damages, costs incurred and attorneys’ fees. If Buyer is in default under this or any other contract with the Seller, or if Seller at any time shall not be satisfied with Buyer’s financial responsibility, Seller shall have the right, without prejudice to any other legal remedy, to suspend deliveries hereunder until such default or condition is remedied.
16. PLACE OF CONTRACT. Any contract arising out of the placing of any orders and the acceptance thereof by Seller, shall be a New Mexico contract and shall be interpreted and administered for all purposes under the laws of State of New Mexico. The Bernalillo County, NM is hereby designated as the place of trial for any action or proceeding arising out of or in connection with this Agreement.
17. LIMITATION OF ACTION. Any action by the Buyer against the Seller for the breach of this contract or the warranty described herein will be barred unless commenced within one year after the date of delivery or invoice, whichever is earlier.
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