These “Terms and Conditions” govern the sale by Area51-ESG, Inc. and its divisions, subsidiaries, and affiliates (collectively, “Seller”), as well as Seller’s third-party vendors and/or service providers, with respect to any goods and/or services provided to the applicable purchaser (“Buyer”).
All orders placed by Buyer are subject to acceptance by Seller in accordance with these Terms and Conditions. Orders may not be canceled or rescheduled without Seller’s prior written consent. All orders must include delivery dates, quantities and complete description of the Goods requested for purchase. Seller may in its sole discretion allocate Goods to its customers. Seller may designate certain Goods as “non-cancelable,” “AS IS,” “final” and/or “non-returnable” and the sale of such Goods can be subject to special terms and conditions stated on the invoice or such notice to Buyer.
Unit pricing for all Goods and services ordered by Buyer are specified on each invoice. Price quotations, unless otherwise stated, shall automatically expire five (5) calendar days from the date issued and may be canceled or amended within that period upon notice to Buyer. Unless otherwise agreed to in writing by Seller, all prices quoted are exclusive of transportation, shipping, freight and insurance costs, duties, and all taxes including federal, state, and local sales, excise and value added taxes, and similar taxes. Buyer agrees to pay these taxes unless Buyer has provided Seller with an exemption resale certificate in the appropriate form for the jurisdiction of Buyer’s place of business and any jurisdiction to which the purchased Goods are to be directly shipped hereunder, or unless the sale is otherwise exempt from these taxes. All international shipments shall also be subject to VAT, PST, HST, and/or GST charges as well as brokerage fees, all of which shall be Buyer’s sole responsibility and due at the time of shipment or delivery. Buyer agrees to indemnify, defend, and hold harmless Seller for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation, shipping, freight, and taxes shall appear as separate items on Seller’s invoice.
Standard terms of payment are net thirty (30) days from the date of invoice unless otherwise specified in writing by Seller. Seller may invoice each shipment separately and each shipment can be considered a separate and individual contract. Buyer agrees to pay such invoice pursuant to its terms without the benefit of setoff or deduction. Credit card payments will be verified prior to each credit card transaction as credit card information is not stored on file.
Interest at the rate of one and one-half percent (1 1/2%) per month or the maximum rate permitted by law, whichever is less, shall be imposed on all outstanding balances. Late charges not to exceed $100.00 per month shall also apply.
Seller reserves the right to establish and/or change credit and payment terms extended to Buyer when, in Seller’s sole opinion, Buyer’s financial condition or previous payment record warrants that action. Further, on delinquent accounts, Seller shall not be obligated to continue performance under any agreement with Buyer.
Any additional or inconsistent terms contained in a purchase order or other document are specifically rejected. These Terms and Conditions take precedence over Buyer’s additional or different terms and conditions to which notice of objection is hereby given. Neither Seller’s commencement of performance nor delivery shall be deemed or constituted as acceptance of Buyer’s additional or different terms and conditions. Buyer’s acceptance of the Goods and/or services shall be deemed to constitute acceptance of the Terms and Conditions contained herein.
Seller retains a security interest in all Goods delivered to Buyer, and in such related accessories, replacements, accessions, proceeds and Goods, including accounts receivable (collectively, the “Collateral”) to secure payment of all amounts due under these Terms and Conditions. If Buyer fails to pay any amount when due, Seller shall have the right to repossess and remove all or any part of the Collateral from Buyer. Any repossession or removal shall be without prejudice to any other remedy of Seller hereunder, at law or in equity. Buyer agrees, from time to time, to take any act and execute and deliver any document (including, without limitation, financing statements) reasonably requested by Seller to transfer, create, perfect, preserve, protect, and enforce this security interest.
Delivery will be deemed complete and risk of loss or damage to any Goods will pass to Buyer upon delivery to the carrier. Buyer acknowledges that delivery dates provided by Seller are estimates only and Seller shall not be liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of Seller nor shall the carrier be deemed an agent of Seller. In the event of delay caused by such event, the date of delivery shall be extended for a period equal to the time lost as a consequence of the delay in delivery without subjecting Seller to any liability or penalty. Unless expressly requested by Buyer and subject to additional handling charges, the delivery/carrier and delivery route will be at Seller’s sole determination.
Shipments will be deemed to have been accepted by Buyer upon receipt of the said shipments at Buyer’s facility. Buyer shall perform whatsoever inspection or tests Buyer deems necessary as promptly as possible but in no event later than five (5) calendar days after delivery, at which time Buyer must either accept or reject the Goods by providing written notice to Seller. Any discrepancy in shipment quantity must be reported in writing within five (5) calendar days of receipt of the Goods. In the event of an over shipment, Buyer shall have the option to return the Goods to Seller at Seller’s expense or alternatively, Buyer may elect to retain the Goods (subject to adjustment of the invoice price to account for additional items).
All Goods returns shall be subject to Seller’s prior written return merchandise authorization (RMA) as well as a twenty-five (25%) percent restocking charge. Returned Goods shall be returned within 15 days of the RMA date. Returned Goods must be in the original condition, packaging and unused (except as to defective Goods). Unless otherwise agreed by Seller in writing, return transportation costs must be prepaid by Buyer. All Goods identified as “NC/NR” are deemed non-cancelable, non-returnable and shall not be subject to rescheduled shipment unless both Seller and its supplier expressly consent otherwise in writing, which consent can be denied, conditioned and/or qualified for any reason. All Goods labeled as moisture sensitive are deemed NC/NR if the packaging has been opened. Further, any electrostatic discharge (“ESD”) sensitive Goods (or component parts therein) requested for return that, in Seller’s sole determination, has not been properly handled will not be eligible for refund or credit and Buyer acknowledges that, due to the latent nature of such ESD damage, Seller has the right to: (i) conduct inspections or testing as to such Goods which may delay processing of any refund or credit; and/or (ii) revoke or reverse issued refunds or credits if ESD damage is subsequently discovered. Buyer is advised that ESD sensitive Goods should not be opened except under controlled conditions. Refund or credit eligibility is determined (approved or rejected) after Seller inspects and verifies the returned Goods.
Subject to any other return conditions, only Goods originally shipped from Seller or at Seller’s direction (drop-ship) will be eligible for returns to Seller. All other Goods will be, at Seller’s sole determination, promptly quarantined and disposed of or returned to Buyer at Buyer’s sole expense. By returning any Goods to Seller, Buyer thereby represents and warrants that such Goods were purchased from Seller and there has been no substitution in whole or part thereof from another supplier, distributor, or other such source of the Goods.
The only warranty on any goods sold to Buyer is the express written warranty, if any, granted by the manufacturer. However, no such warranty will apply if the Goods has been subject to misuse, static discharge, neglect, accident, modification, soldered or altered in any manner. SELLER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR USE WITH RESPECT TO THE GOODS, OR SERVICES PROVIDED. Further, Seller does not determine the specifications or conduct any performance or safety testing of any Goods that it sells. Specification sheets provided to Buyer are produced by the manufacturer or transcribed from information provided by the manufacturer and no warranty as to accuracy of such information is intended thereby.
Seller guarantees that all Goods subject to these Terms and Conditions are authentic, unused, and free from known defects and Seller, at its sole decision, will replace defective parts or refund the original purchase price of such Goods, provided that Seller is provided written notice within one (1) year of the purchase date.
Seller’s maximum liability to Buyer shall be limited to the amount that Buyer paid to Seller for the merchandise or service received. IN NO EVENT WILL SELLER OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM ANTICIPATED OR LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF BUYERS, LOSS OF MARKET SHARE, LOSS OF GOODWILL OR MANUFACTURING EXPENSES, RECALL COSTS, CLAIMS FOR SERVICE INTERRUPTIONS OR FAILURE TO SUPPLY DOWNTIME, TESTING, INSTALLATION OR REMOVAL COSTS, COSTS OF SUBSTITUTE GOODS, PROPERTY DAMAGE, PERSONAL INJURY, DEATH OR LEGAL EXPENSES AND/OR ANY OTHER LOSS(ES) THAT MIGHT ARISE AS A DIRECT OR INDIRECT RESULT OF THE SALE OR USE OF THE GOODS, SERVICES OR AS RESULT OF SELLER’S NON-PERFORMANCE OR INADEQUATE PERFORMANCE OF ITS OBLIGATIONS, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Buyer shall indemnify, defend, and hold Seller and its suppliers harmless from any claims brought by any individual or entity regarding Goods or services supplied by Seller.
If an order includes software or other intellectual property, such software or other intellectual property is provided by Seller to Buyer subject to the applicable copyright and user license, the terms and conditions of which are set forth in the license agreement accompanying such software or other intellectual property. However, nothing herein shall be construed to grant any rights or license to use any software or other intellectual property in any manner or for any purpose not expressly permitted by such license agreement. Further, only unopened software may be returned for credit and, unless defective, opened software may not be returned for any reason.
Seller is committed to compliance with all U.S. Export Regulations and Laws and, as such, will not sell or ship to countries embargoed by the U.S. Treasury Office of Foreign Asset Control (“OFAC”) or individuals or organizations identified by the U.S. Treasury as Specially Designated Nationals and Blocked Persons. Further, Seller will not sell or ship Goods prohibited under Export Administration Regulations to individuals or organizations identified by the U.S. Department of Commerce, Bureau of Industry and Security (“BIS”). Seller prohibits the re-export, brokering or transshipment of its Goods to any individual, organization or country prohibited by the OFAC or BIS. The sale, resale or other disposition of any Goods sold by Seller, and any related technology or documentation thereto, 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 further acknowledges that it shall not directly or indirectly export any such Goods 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. Any use made of Seller as to export or tariff classifications is without recourse to Seller and intended for Seller’s internal use only and shall not be construed as a representation or warranty regarding the proper classification nor relied upon by Buyer for any purpose whatsoever. It is Buyer’s sole responsibility to determine the correct classification.
Purchaser’s rights under these Terms and Conditions may not be assigned without Seller’s prior written consent. However, the foregoing does not limit Buyer’s right, upon making payment in full, from transferring title to the merchandise subject to written notice to and transfer of title on the records of Seller.
These Terms and Conditions shall be binding on the heirs, executors, administrators, successors and assigns of the Buyer. Buyer further agrees that Seller may assign its rights under this agreement and that this agreement shall be binding upon and inure to the benefit of the successors and assigns of Seller.
These Terms and Conditions consist of all terms which have been agreed upon between the parties with the exception of any (i) credit application provided by Buyer, (ii) personal guarantee(s) submitted by Buyer, and/or (iii) such additional terms as provided on Seller’s invoices. These Terms and Conditions replace all other discussions and agreements, whether oral or written, as relating to those Goods and services, including, but not limited to any purchase orders issued by Buyer. No subsequent discussion or agreements, whether oral or written, as relating to those Goods and services. No subsequent discussion or agreement can change the terms of this contract unless it is written and signed by both parties.
These Terms and Conditions shall, in all respects, be interpreted, enforced, and governed exclusively by and under the laws of the State of California (without regard to principles of conflicts of laws that might apply the laws of any other jurisdiction). The state or federal courts in and for Orange County, California shall have exclusive venue and jurisdiction over any dispute arising from these Terms and Conditions. The foregoing, however, shall not limit the right to serve process in any other jurisdiction or to commence any legal action/proceeding in any other jurisdiction in order to obtain execution of judgment in such other jurisdiction. Buyer expressly waives the right to object to the exclusive personal and subject matter jurisdiction of said courts, the venue of such courts and/or that such courts are an inconvenient forum. Notwithstanding the above, if the subject transaction involves a Buyer located outside of the United States then any dispute between Seller and Buyer will be subject to the New York Treaty established by the United Nations and the Parties agree to participate in a binding arbitration that will take place in Orange County, California with the Parties sharing equally in the cost of the arbitration. The arbitration award will be enforceable in any jurisdiction so long as that jurisdiction is a signatory to the New York However, before initiating any litigation to resolve a dispute between the Parties, Buyer and Seller agree to mediate the dispute. Said mediation shall take place in Orange County, California and it will last a minimum of four hours. Buyer and Seller will share equally in the cost of the mediation and the mediator.
In any action at law or in equity to enforce any of the provisions or rights under these Terms and Conditions and/or for collection of amounts due, the prevailing party shall be entitled to recover from the unsuccessful party all costs, expenses and reasonable attorneys’ fees incurred therein by the prevailing party (including, without limitation, such costs, expenses and fees on any appeals), and if such prevailing party shall recover judgment in any such action or proceeding, such costs, expenses, including those of expert witnesses and related collection activities, shall be included as part of the judgment.
Seller shall not be liable for delays in delivery or for failure to perform its obligations due to causes beyond its reasonable control including, but not limited to, Goods allocations, material shortages, labor disputes, transportation delays, unforeseen circumstances, acts of God, acts or omissions of other parties, acts or omissions of civil or military authorities, Government priorities, fires, strikes, floods, severe weather conditions, computer interruptions, terrorism, epidemics, quarantine restrictions, riots or war. Seller may, at its option, cancel, condition, or limit any order or remaining part thereof, without liability by giving notice of any of the aforementioned Force Majeure events to Buyer.
If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
Seller’s rights and remedies hereunder supplement Seller’s other rights, whether existing under the Uniform Commercial Code or otherwise, and all such rights and remedies are deemed cumulative and not exclusive. Waiver by Seller of any term, provision or condition of these Terms and Conditions and/or any order relating thereto shall not be deemed a waiver of any other term, provision or condition of these Terms and Conditions and/or order.
Effective Date: 03-28-2023