Sommer cable America, a California Corporation doing business as Sommer cable America (“ScA”) agrees to sell to the Purchaser whose name appears on the invoice (THE "Invoice") the ScA Products specified on the invoice (the “Products”), subject to the following terms and conditions of this Purchase Agreement:
1. Prices are F.O.B. ScA’s headquarters in Santa Rosa, California or F.O.B. the Sommer cable GmbH Warehouse in Germany. All prices are quoted for pre-payment, payment in cash, payment by Credit Card at time of order/shipment, or, after Credit Aproval by ScA, on open invoice with a 3% discount for payments made with 20 days from invoice date, or Net 30.
Title to and risk of loss or damage to Products in transit shall pass to Purchaser upon shipment from ScA or Sommer GmbH Germany. ScA shall have the right to select the method of shipment and the carrier. The purchaser will bear the cost of the carrier’s charges, including charges for insurance against loss or damage to Products while in transit. The cost of special packaging, if requested or deemed necessary in ScA’s discretion, shall be an additional charge to Purchaser.
2. Delivery dates in any confirmation of purchase orders shall be deemed to be estimated only. Purchaser shall not be relieved of performance because of ScA’s failure to meet a delivery date. ScA shall have the right to modify or cancel this purchase, in the event of acts beyond its control, including, but not limited to acts of God or government, labor disputes or inability to secure materials labor or transportation.
3. ScA’s acceptance of the order or obligation to ship Products is subject to prior approval of ScA’s Credit Department. If requested by ScA, Purchaser agrees to submit reasonable financial information and execute and deliver customary financing statements.
4. ScA may, if in its opinion, the financial condition of Purchaser so warrants, or if Purchaser fails to make payments when due, or otherwise defaults hereunder, after terms of payment, suspend credit and delay shipment until such terms are met, or pursue any remedies available at law or under this purchase agreement. In such event, ScA shall be entitled to reimbursement from Purchaser for its reasonable expenses, including attorney’s fees.
5. If the prices herein represent a price based on a quantity of Products where not all Products are purchased, ScA reserves the right to adjust prices of the Products purchased and to bill Purchaser for any differences.
6. Purchaser shall bear the cost of any sales, use, excise, or similar tax applicable to purchase of Products under this Purchase Agreement, unless Purchaser provides ScA with a tax exemption certificate of license acceptable to the taxing authorities.
7. Each ScA product is manufactured from new parts or serviceable parts that are equivalent to new parts in performance. All ScA products benefit from the same quality standards. ScA warrants to the Purchaser that ScA Hardware Components will be free from defects in material and workmanship for one (1) year from the date of shipment by ScA, subject to the exclusions set forth below. ScA’s exclusive obligation (and Purchaser’s only remedy) for any defect shall be to repair or exchange at ScA’s option, without charge, except for shipping charges, any Hardware Components returned to ScA’s warehouse, factory or service center.
Within the warranty period, Purchaser shall notify ScA of any defect in material or workmanship. If a Hardware Component is defective, ScA may forward a new part to Purchaser, send Purchaser an invoice for the part and credit invoice upon receipt of defective Hardware Component returned to ScA. ScA reserves the right to inspect or repair Products on Purchaser’s premises.
8. ScA specifically excludes the following from warranty coverage, and assumes no obligation for repair or exchange with respect thereto: (a) Products which have been modified, repaired, or altered by non-ScA procedures, unless authorized by ScA in writing; (b) Products which have been subjected to misuse, misapplication, improper maintenance, negligence, acts beyond Purchaser’s control (including failure of or excessive electric power or failure of environment control equipment); (c) Products specifically sold AS IS and with ALL FAULTS; (d) certain hardware components subject to short useful lives including tubes, fuses, lamps and batteries; and (e) Products which without authorization have had their serial numbers or other identifying marks altered, defaced, or removed.
9. No repair or replacement shall extend the warranty period.
10. ScA warrants non-ScA manufactured Products which ScA incorporates without modification as a functional assembly into Products to the same extents as each manufacturer warrants such Products to ScA. Such warranties no longer apply if Purchaser modifies such Products. Warranties for non-ScA manufactured Products are available on request. ScA will assist the Purchaser in obtaining such warranty repairs.
11. THE ABOVE WARRANTIES ARE IN LIEU OF ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. ScA AUTHORIZES NO OTHER PERSON TO GRANT ANY OTHER WARRANTIES.
12. IN NO EVENT SHALL ScA BE LIABLE FOR ANY INCIDENTAL, DIRECT, CONSEQUENTIAL, OR SPECIAL DAMAGES, OR LOST REVENUE OR PROFIT, IN ANY ACTION, WHETHER BASED ON TORT, CONTRACT, OR OTHERWISE IN CONNECTION WITH THIS CONTRACT. IN NO EVENT SHALL ScA’S LIABILITY FOR DAMAGES WITH RESPECT TO ANY OF THE EQUIPMENT FURNISHED UNDER THIS CONTRACT EXCEED THE CHARGES PREVIOUSLY PAID BY THE PURCHASER TO ScA FOR SUCH EQUIPMENT.
13. Purchaser shall have complete responsibility for installation and operation of the Products and for obtaining of any permits, licenses, and/or certifications which may be required by a regulatory agency for the installation, use or operation of the Products.
14. Except for hardware and software components that have been specifically identified to Purchaser as third party hardware or software, ScA represents and warrants that it is the owner of the Hardware Components and Software Components and that it can convey the lease and license herein granted. ScA will indemnify Purchaser against any claims of patent or copyright infringement or trade secret violation made by any third parties based on Customer’s use of the Products based on infringement of patents, copyrights, or trade secrets.
15. Should a Product become, or be likely to become, the subject of a claim of infringement, Purchaser shall permit ScA, at its option and expense, to procure for Purchaser the right to continue using the Product, to replace or modify the Product so that it becomes non-infringing, or to require the return of the Product in exchange for a reasonable credit for the Product as depreciated.
16. In no event shall ScA be liable to Purchaser on any claim of patent, copyright, trademark, or trade secret infringement based upon (a) the combination of Products with equipment or devices not sold by ScA; (b) Products supplied according to a design which is required or ordered by Purchaser; or (c) patented processes performed by Products.
17. You must examine the product and accessories upon receipt of product. If any item is damaged or missing, you must notify us immediately. ScA will not consider any claims for damaged or missing items more than 3 days from the date of delivery. Product that is non-operational “out of the box” is considered to be DOA. DOA product will be replaced or credited, but must be returned in its original packaging with warranty, instructions, and accessories, and must be accompanied by a copy of original invoice.
18. Product returned within 7 days of shipment after a Return of Merchandise Authorization (RMA) has been issued by ScA will be subject to a 25% restocking fee. Absolutely no credit/refund after 30 days from shipment date.
19. Product returned for non-defect, non-compatible, or technical reasons must have approval from customer service manager. Shipping damage or loss: We ship all products insured. If an order is received damaged, incomplete or lost in shipment, a notification should be made immediately to the customer service department of ScA within 24 hours of receipt. Claims made thereafter will not be considered.
20. Special order items that are not a regular stock item will not be accepted for return, credit or refund for any reason.
21. Shipping/handling charges, labor charges or deposits are all non-refundable. Cost of shipping replacement products to buyers within the 48 contiguous US States will be borne by ScA. Additional costs for international shipping, Alaska, and Hawaii will be borne by buyer. Cost of delivering the defective products to our premises will be borne by the buyer.
22. All refunds will be processed within 30 days after receipt of the returned goods to allow for inspection and acceptance. Refunds will be made in the same manner as the purchase price was paid to ScA except cash, for which a check will be issued as form of refund. NO CASH REFUNDS.
23. An RMA number must be obtained from Customer Service department before returning any product. All returns must be in original package, including original contents, instructions and accessories; a copy of original invoice with a note detailing all problems; and the RMA number must be clearly marked on the container; otherwise shipment may be subject to refusal by ScA. All replacements are subject to stock availability. If a product has been discontinued in the market, a replacement item of equal value or a credit for current value will be issued at seller’s discretion. ScA shall not be liable for waiting period of an RMA item. We reserve the right to refuse acceptance of an item that is returned incomplete.
24. ScA shall acknowledge Purchaser’s deposits. If Purchaser defaults after payment of deposit, ScA may, in addition to any other remedy available retain such deposit as security for the recovery of such damages as may be allowed by law.
25. ScA reserves the right to modify or change Products in whole or in part at any time prior to delivery to include electrical or mechanical design refinements it deems appropriate, without obligation to modify or change any Products previously delivered or to supply new Products in accordance with earlier specifications.
26. Purchaser shall not assign any rights, duties, or obligations of this Purchase Agreement without ScA’s prior written consent.
27. This Purchase Agreement shall be governed by and construed in accordance with the laws of the State of California.
28. This Agreement contains the entire Agreement between ScA and Purchaser. No agreement or other understanding in any way modifying the conditions of this Agreement shall be binding upon ScA unless made in writing and signed by ScA. ScA shall not be bound by any terms of conditions on Purchaser’s acknowledgement forms, invoices, or other communications of Purchaser unless acceptance of such terms of conditions is expressly made by ScA in writing in an instrument pertaining to such acceptance only.
In no event shall an acknowledgement or receipt of any part of the order by purchaser be deemed to be an acceptance of any such terms or conditions. The foregoing provision cannot be waived except by express written consent. No waiver by either party or any default on the part of the other party shall be deemed a waiver of any subsequent default.