CONCISE MOTION SYSTEMS, INC. (“SELLER”)
GENERAL TERMS AND CONDITIONS
(Effective
(APPLICABLE TO ALL SALES UNLESS OTHERWISE AGREED IN WRITING BY SELLER)
1. Quotations. Seller’s price quotations expire after ninety (90) days, and shall not be considered an offer to sell by Seller. The contract between Seller and the customer shall be formed in New Mexico only upon Seller’s transmission of an acceptance and confirmation of the customer’s purchase order, which acceptance and confirmation shall, whether or not stated therein, incorporate by reference these General Terms and Conditions.
2. Payment. Payment for shipments to destinations
within the United States is due in full thirty (30) days following invoice
date, without regard to receipt or acceptance of equipment or warranty
claims. Payment for shipments to
destinations outside the
3. Delivery. Unless otherwise provided in
Seller’s acceptance and confirmation, delivery will be made F.O.B.
destination, with shipping charges to be paid by Seller. Seller shall ship the equipment to the
destination designated by the customer and shall use its best efforts to do so
on the shipment date indicated on Seller’s acceptance and confirmation
notice. Neither shipment nor
estimated delivery dates are guaranteed.
Seller will, upon at least ten (10) days’ notice by the customer
in advance of the scheduled shipment date, ship to an alternative location in
the contiguous forty-eight states and the
4. All Sales Final. Seller’s products are made to order and upon Seller’s acceptance and confirmation, all sales are final. Orders may not be cancelled and equipment may not be returned without the express prior written approval of Seller, which may be withheld in Seller’s sole discretion. Seller may, at its discretion, permit cancellation or return, in exchange for a cancellation fee or restocking fee up to the amount of the purchase price.
5. Limited Warranty. All equipment sold by Seller is warranted under normal use and service to be free from defects in material and workmanship for a period of six (6) months from the date of shipment (the “Warranty Period”).
This Warranty does not apply to defects not caused by Seller (such as acts of God, abuse, misuse, vandalism or improper installation or operation), nor to equipment which has been altered or improperly repaired by a party other than Seller.
To make a claim under this Warranty, the customer must notify Seller in writing within the Warranty Period. The customer shall not return equipment to Seller or its agent without receiving prior written authorization from Seller. Any repair performed by Seller shall be warranted for the remainder of the unexpired period of the Warranty plus the amount of time the equipment was under repair or for a period of ninety (90) days, whichever is longer.
THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE. THE SOLE AND EXCLUSIVE LIABILITY OF SELLER SHALL BE TO REPAIR OR REPLACE A DEFECTIVE ITEM OF EQUIPMENT, OR REFUND THE PURCHASE PRICE, AT SELLER’S SOLE DISCRETION. IF SELLER FAILS TO REPAIR OR REPLACE THE DEFECTIVE EQUIPMENT, SELLER’S ENTIRE LIABILITY SHALL NOT EXCEED SELLER’S PRICE FOR THE DEFECTIVE EQUIPMENT. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INTERRUPTION OF BUSINESS OR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND OR NATURE WHATSOEVER EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. NO WAIVER, ALTERATION OR MODIFICATION OF THIS WARRANTY SHALL BE BINDING AGAINST SELLER UNLESS IN WRITING AND SIGNED BY AN EXECUTIVE OFFICE OF SELLER.
It is understood that Seller’s charges for maintenance and repairs not covered by this Warranty shall be on a time and material basis at its then current rates consistent with those offered to customers on similar equipment, and shall be due and payable as soon as Seller determines that the equipment or work involved is not so covered, and Seller shall have no obligation hereunder or otherwise to provide further maintenance or repair services to any person that has failed to pay promptly for any such maintenance or repairs.
6. Taxes. The customer shall be responsible for the payment of all export and state or local excise, sales, gross receipts, use, property, and other taxes or charges levied with respect to the equipment sold to the customer. Taxes and other charges will be added by Seller to the purchase price where Seller has the legal obligation to collect or pay the same and will be invoiced and paid by the customer unless the customer provides Seller with a proper tax exemption certification.
7. Specifications. Seller reserves the right, without prior approval from or notice to the customer, to make changes to the equipment and to substitute equipment manufactured to those changes provided the equipment delivered substantially conforms to the specifications. Equipment sold or repaired hereunder may include new parts or serviceable used parts that are functionally equivalent to new parts and which are warranted as if they are new parts.
8. Governing Law and Jurisdiction. The contract between Seller and the customer, including these General Terms and Conditions, shall be deemed made in New Mexico and shall be construed and governed in all respects in accordance with New Mexico law, excluding its principles of conflicts of laws. All disputes and matters arising under, in connection with or incident to this contract shall be litigated, if at all, in and before a state court located in New Mexico, or a federal court located in the District of New Mexico, to the exclusion of the courts of any other state or country. Each of the parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to jurisdiction or venue laid therein. Process in any such action or proceeding referred to in this Section may be served on either party anywhere in the world.
9. Waiver of Claims. Customer’s receipt of the equipment will constitute an unqualified acceptance of such equipment and a waiver of any and all claims with respect to such equipment (other than warranty claims) unless the customer gives Seller written notice of its claim within thirty (30) days after receipt of the equipment.
10. Collection/Enforcement. Accounts more than ninety (90) days past due may be turned over for collection. In addition to any other remedies available at law or in equity, the customer agrees to pay all costs of collection or other enforcement of Seller’s rights, including without limitation collection fees, court costs and Seller’s attorneys fees.
11. Force Majeure. If the performance of either party is made impossible by reason of any circumstances beyond such party’s reasonable control, including without limitation, fire, explosion, power failure, acts of God, war, revolution, civil commotion, or acts of public enemies, any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body, labor unrest, including without limitation, strikes, slowdowns, picketing, or boycotts, then the affected party shall be excused from such performance on a day-to-day basis to the extent of such interference, provided that it shall use reasonable efforts to remove such causes of nonperformance. Under no circumstances shall economic considerations or economic impossibilities and inefficiencies delay performance or be considered a force majeure.
12. Export and Compliance with Laws. The customer agrees to comply with all
applicable laws, decrees, ordinances, and regulations. The customer understands that Seller is
subject to regulation by agencies of the U.S. government, which may now or
hereafter require licensing for and/or prohibit export or diversion of
Seller’s products to certain countries, and agrees it will not knowingly
assist or participate in any such diversion or other violation of applicable
U.S. laws, decrees, ordinances, and regulations, including without limitation
the Foreign Corrupt Practices Act.
The customer warrants that it shall not sell any of Seller’s
products in countries or to users not approved to receive the product without
first obtaining any licenses or permits required under applicable
13. Assignment. No party shall transfer or assign any or all of its rights or interests hereunder without the prior written consent of the other party. These terms and conditions shall be binding upon and inure to the benefit of Seller and the customer, their successors and permitted assigns, or other legal representatives.
14. Entire Agreement. These General Terms and Conditions, together with Seller’s acceptance and confirmation, and any International Terms and Conditions incorporated into Seller’s acceptance and confirmation, constitute the entire agreement between the parties and there are no representations, warranties, covenants, or obligations except as set forth in these documents. None of the customer’s terms and conditions in its purchase order or other communications, if any, shall apply nor shall they amend or modify these General Terms and Conditions unless set forth in Seller’s acceptance and confirmation. These General Terms and Conditions, together with Seller’s acceptance and confirmation, supersede all prior and contemporaneous agreements, purchase orders, understandings, negotiations, and discussions, written or oral, of the parties.