Terms and Conditions of Sales
These terms and conditions govern the sale of Products ("Products")
and the provision of services ("Services") by Ellisys and
its divisions, subsidiaries and affiliates ("Seller") as
well as by third party vendors and/or service providers of Seller.
These terms and conditions ("Agreement") take precedence
over Buyer’s supplemental or conflicting terms and conditions
to which notice of objection is hereby given. Acceptance by Buyer
is limited to and conditioned upon Buyer’s assent to these
terms and conditions. Neither Seller’s commencement of performance
or delivery shall be deemed or constituted as acceptance of Buyer’s
supplemental or conflicting terms and conditions. These terms and
conditions are deemed to be accepted by the customer at the time
the product is purchased, leased, lent or used, whether or not acknowledged
in writing. THESE TERMS AND CONDITIONS MAY ONLY BE WAIVED OR MODIFIED
IN A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF
SELLER.
Orders
All orders placed by Buyer are subject to acceptance by Seller.
Orders may not be cancelled or rescheduled without Seller’s
written consent. All orders must include delivery dates, quantities
and complete description of Products being purchased. Seller may
in its sole discretion allocate Product among its Customers. Seller
may designate certain Products as non-cancelable, non-returnable
("NCNR") or customer specific ("CS") Products
and the sale of such Products shall be subject to the special terms
and conditions contained in Seller’s Special Product Agreement,
which shall prevail and supersede any inconsistent terms and conditions
contained herein or elsewhere.
Prices
(a) The prices of the Products are those specified on the front
of Seller’s invoice. Pricing for undelivered Product may be
increased in the event of any increase in
Seller’s cost, change
in market conditions or any other causes
beyond Seller’s reasonable
control. Price quotations, unless otherwise
stated, shall automatically expire thirty (30) calendar days from
the date issued and may be cancelled or amended within that period
upon notice to Buyer.
(b) Unless otherwise agreed to in writing by
Seller, all prices quoted are exclusive of
transportation and insurance costs, duties, and all taxes including,
but not limited to, federal, state, provincial and local sales,
excise, value added, goods and services taxes and any other 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 Products are to be directly shipped
hereunder, or unless the sale is otherwise exempt from these taxes. Buyer agrees
to indemnify and hold Seller harmless 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 and taxes shall
appear as separate items on Seller’s invoice.
Payment
(a) Full payment is due promptly upon placing an order on this
website. For all other orders, upon approval of credit, corporate
standard terms of payment are net thirty (30) days from the date
of invoice unless otherwise specified in writing by Seller. In addition,
Buyer will be deemed to have accepted an invoice upon the fifteenth
(15th) day from the date of invoice and no further objections to
the invoice will be permitted or accepted. If Seller otherwise specifies
in writing payment terms longer than thirty (30) days from the date
of invoice, then: (i) the invoice will be deemed accepted upon the
thirty (30th) day from the date of invoice and no further objections
will be permitted or accepted; and (ii) Buyer must certify within
thirty (30) days from the date of invoice that payment has been
submitted for processing. Seller may invoice each shipment separately
and each shipment shall be considered a separate and individual
contract. Buyer agrees to pay such invoice pursuant to its terms
without the benefit of setoff or deduction.
(b) All late payments
shall be charged interest computed on a daily
basis from the due date until paid in full.
A late charge of one and one-half percent (1 1/2%) per month or
the maximum rate permitted by applicable law, whichever is less,
will be imposed on all past due accounts. Buyer shall be liable
for costs of collection, including reasonable attorneys’ fees
and court costs, in any action to collect past due amounts.
(c) Transportation
charges from Seller’s facility to Buyer’s
facility shall be paid by Buyer to Seller, in addition to the purchase price
of the Product, unless otherwise agreed to in writing by Seller. Seller will
select the carrier in the absence of specific instructions by Buyer.
(d) 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 such action. Further, on delinquent accounts, Seller shall
not be obligated to continue performance under any agreement with
Buyer.
(e) 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 NCNR and CS Products ordered by Buyer.
(f) Seller retains a purchase
money security interest in the Products delivered
to Buyer, and in their accessories, replacements,
accessions, proceeds and Products, including accounts
receivable (collectively, the "Collateral") to secure payment
of all amounts due under this Agreement.
Buyer’s failure to
pay all amounts hereunder in full when and
as due shall constitute a default hereof
and shall give Seller all rights of a secured party. 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, but not
from Buyer’s Customers.
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.
(g) Any payment 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 payment, without discharging Buyer's
liability for any additional amounts owing
from Buyer to Seller, and the acceptance
by Seller of such payment shall not constitute
a waiver of Seller's right to pursue the collection of any remaining
balance.
Delivery and Title
All deliveries will be made EXW (Ex Works as defined in Incoterms
2000) Seller’s facility or FOB place of origin. Subject to
Seller's right of stoppage in transit, 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.
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. If the Products perished while in the custody of the
carrier, the Seller shall be deemed to have performed its obligations
in full. Delivery of a quantity, which varies from the quantity specified,
shall not relieve Buyer of the obligation to accept delivery and
pay for the Products delivered. Delay in delivery of one installment
shall not entitle Buyer to cancel other installments.
Acceptance/Returns
Shipments will be deemed to have been accepted by Buyer upon delivery
of the said shipments to Buyer unless rejected upon receipt. Buyer
shall perform whatever inspection or tests Buyer deems necessary
as promptly as possible but in no event later than five (5) days
after delivery, after which time Buyer will be deemed to have irrevocably
accepted the Products. Any discrepancy in shipment quantity must
be reported within five (5) working days of receipt of the Products.
In the event of an over shipment, Buyer shall have the option to
return the Products to Seller at Seller’s expense or alternatively,
Buyer may elect to retain the Products (subject to adjustment of
the invoice or the issuance of another invoice to account for such
additional items.) Any Product returns shall be subject to compliance
with Seller’s Return Merchandise Authorization ("RMA")
policies and procedures as well as a restocking charge equivalent
to 50% of the value of such Product as specified in Seller’s
invoice to Buyer. Returned Products must be in the original packaging
and conform to minimum package quantity ("MPQ") requirements.
Products not eligible for return shall be returned to Buyer freight
collect.
Intellectual Property
If any Product includes software or other intellectual property,
such software or other intellectual property is provided by Seller
to Buyer subject to the copyright and user license, if any, for such
Products, the terms and conditions of which are set forth in the
license agreement accompanying such software or other intellectual
property. 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. Buyer acknowledges and understands that Seller is not
the manufacturer of any Products ordered or to be supplied to Buyer
and is not liable to Buyer or any third party for any copyright,
design or patent issue, right or claim that may arise in relation
to any Product.
Technical Assistance or Advice
Any technical assistance or advice offered by Seller in regard to
the use of any Product or provided in connection with Buyer’s
purchases is given free of charge and only as an accommodation to
Buyer. Seller shall have no obligation to provide any technical assistance
or advice to Buyer and if any such assistance or advice is provided,
such fact will not obligate Seller to provide any further or additional
assistance or advice. Seller shall not be held liable for the content
or Buyer’s use of such technical assistance or advice nor shall
any statement made by any of Seller’s representatives in connection
with the Products or Services constitute a representation or warranty,
express or implied.
Dispute Resolution
(a) Except for situations governed by Section 12, the parties agree
that any and all disputes, claims, or controversies
arising out of or related to the validity, interpretation or performance
of this Agreement for all Products delivered outside of Canada,
and all Services performed outside of Canada, shall be resolved
pursuant to this Section 11 and that the validity, interpretation
and performance of this Agreement for all Products delivered, and
all Services performed hereto, shall be governed by, and construed
in accordance with, the internal law of Massachusetts, without giving
effect to conflict of laws principles. Both parties agree that any
action, demand, claim or counterclaim relating to the terms and
provisions of this Agreement, or to any claimed breach, shall be
commenced in a state or federal court located in the Commonwealth
of Massachusetts, and both parties expressly acknowledge that personal
jurisdiction and venue shall lie exclusively and is properly in
Massachusetts. Both parties further agree that any action, demand,
claim or counterclaim relating to the validity, interpretation and
performance of this Agreement, or any other matter between the parties,
shall be resolved by a judge alone in Massachusetts, and both parties
hereby waive and forever renounce the right to a trial before a
civil jury.
(b) For all disputes to which this Section 11 applies
and the amount, in the aggregate, of the obligations
arising out of this agreement equals or exceeds
$250,000, the validity, interpretation and performance of this Agreement
shall be governed by, and construed in accordance with the laws
of the State of New York, without giving effect to conflict of laws
principles, and the Federal Rules of Civil Procedure to any dispute.
(c)
With respect to all disputes, the provisions
of the United Nations Convention on Contracts for the International
Sale of Goods 1980 (as amended, replaced or codified from time to
time) shall not apply.
Force Majeure
Force Majeure: Seller shall not be liable for its inability to secure
sufficient quantities of any Product or failure to deliver due to
causes beyond Seller’s reasonable control including, but not
limited to, acts of God, natural or artificial disaster, riot, war,
strike, delay by carrier, shortage of Product, 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, acts of terrorism,
delays in transportation or inability to obtain labor, materials
or Products through its regular sources, which shall be considered
as an event of force majeure excusing Seller from performance and
barring remedies for non-performance. In an event of force majeure
condition, the Seller’s time for performance shall be extended
for a period equal to the time lost as a consequence of the force
majeure condition without subjecting Seller to any liability or penalty.
Seller may, at its option, cancel the remaining performance, without
any liability or penalty, by giving notice of such cancellation to
Buyer.
Non-Waiver
No course of dealing or failure of either party to strictly enforce
any term, right or condition of this Agreement shall be construed
as a waiver of that term, right or condition nor shall Seller’s
acceptance of a purchase order be deemed as an acceptance of any
terms and conditions therein.
Entire Agreement
This Agreement (together with any agreements, policies or terms
incorporated by reference) shall constitute the complete, final and
exclusive statement of the terms of the Agreement between the parties
with respect to the subject matter of this Agreement and the transactions
between the parties and shall not be modified or rescinded, except
by a writing signed by Seller and Buyer. The provisions of this Agreement
supersede all prior oral and written quotations, communications,
agreements, and understandings of the parties with respect to the
subject matter of this Agreement. Products furnished and services
rendered by Seller are done so only in accordance with these terms
and conditions. If any provisions of this Agreement are found to
be invalid by any court having competent jurisdiction, the invalidity
of such provision shall not affect the validity of the remaining
provisions of these terms and conditions, which shall remain in full
force and effect.
General
As used herein, terms appearing in the singular shall include the
plural and terms appearing in the plural shall include the singular.
No rights, duties, agreements or obligations hereunder may be assigned
or transferred by Buyer, by operation of law, merger or otherwise,
without the prior written consent of Seller. Any attempted or purported
assignment shall be void. Seller's obligations under these terms
and conditions may be performed by divisions, subsidiaries or affiliates
of Seller. The obligations, rights, terms and conditions hereof shall
be binding on the parties hereto and their respective successors
and assigns. The waiver of any provision hereof or of any breach
or default hereunder shall not be deemed a waiver of any other provision
hereof or breach or default hereunder. Any provision hereof which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof
in that jurisdiction or affecting the validity or enforceability
of such provision in any other jurisdiction.
Governing Law
These conditions and terms shall be governed by and construed in
accordance with the law of Switzerland.
Jurisdiction; Venue
The parties consent to the exclusive personal jurisdiction of, and
venue in, the District Court of Geneva, Switzerland.
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