TERMS AND CONDITIONS OF SALE
The following are the terms and conditions ("Terms and Conditions") for the sale of products ("Products") by Optimal Power Supplies, LLC.to Optimal Power Supplies LLC.’s customers ("Customers").
1. GENERAL TERMS
1.1 These Terms and Conditions constitute an agreement between Optimal Power Supplies, LLC, a Delaware corporation, ("Seller") and buyer identified in Purchase Order or other similar document (“Buyer”) to provide the products described in such Order (the "Products”), subject to the terms, covenants and conditions contained herein. By ordering any product from Seller, whether by clicking through over the Internet, telephone, facsimile or otherwise, Customer agrees to be bound by these Terms and Conditions.
1.2 This document, together with any additional writings signed by Seller or an authorized representative of Seller, represents a final, complete and exclusive statement of the agreement between the parties. This document may not be modified, supplemented, explained or waived by parol evidence, Buyer’s purchase order, a course of dealing, usage of trade, Seller’s performance or delivery, or in any other way except in writing signed by Seller or an authorized representative of Seller.
1.3 Seller expressly rejects any term or provision additional to or different than the terms hereof that may appear in buyer’s purchase order or in any other prior or later communication from buyer to seller unless such provision is expressly agreed to by Seller in a writing signed by seller.
1.4 Catalogs, circulars and similar pamphlets of the Seller are issued for general information purposes only and shall not be deemed to modify the provisions hereof.
2. ACCEPTANCE AND CANCELLATION OF ORDERS * returns any within 30 days, must not be damaged
2.1 Customer’s receipt of the Product(s) delivered hereunder shall be an unqualified acceptance of and shall constitute a waiver of any defect which reasonable inspection would have revealed unless Customer gives Seller notice in writing of return of the Product(s) within thirty (30) days after delivery and request a Returned Material Authorization (RMA) number. Any Product not properly rejected within thirty (30) days after receipt shall be deemed accepted. In the event that Customer gives such notice of return, Customer shall afford Seller reasonable opportunities to inspect any alleged non-conforming Product(s) and allow for a reasonable opportunity to provide substitute conforming Products. NO returns will be accepted after 30 days after delivery.
2.2 Buyer may not cancel or modify its order except upon terms accepted in writing by Seller, provided such order is not characterized by Seller as non-returnable. Large orders, orders for products that are custom-made, or orders for products not customarily in stock are always non-cancelable and non-refundable. Orders may not be canceled or rescheduled after the Seller has submitted the Order to the shipment carrier.
2.3 In the event of cancellation or other withdrawal of an order for any reason, and without limiting any other remedy that Seller is entitled, the Customer shall pay a 35% restocking charge and other expenses incurred as a result of the cancellation or withdrawal.
2.4 Customer must notify Seller within one (1) year from the date of shipment of any defective product which reasonable inspection would not have revealed. (See Section 7 “Limited Warranty” for further information.)
3. PRICES
Prices will be as specified by Seller and will be applicable for the period specified in Seller’s quote. If no period is specified, quoted prices will be applicable for thirty (30) days. The price quote does not include taxes and other charges, including sales, use, excise, value-added and similar taxes or charges imposed by any government authority, shipping charges, forwarding agent's and broker's fees, bank fees, consular fees, and document fees. Prices available on the Optimal Power® web site or catalogs are subject to change without notice.
4. PAYMENT
4.1 For all orders, Customer agrees to pay the entire net amount of each invoice from Seller pursuant to the terms of each such invoice. All payments must be made in the currency billed on the original invoice. For returning, domestic Customers with approved credit references, payment is due NET 30 days from the date of the original invoice. For all new customers, full payment must be made upfront and prior to delivery or within 30 days of delivery of Product(s) provided that credit references are approved. For INTERNATIONAL customers, full payment must be made upfront by Advanced Telegraphic Transfer/Bank Wire Transfer. For Orders of $20,000.00 USD or more, 30% of the payment must be paid upfront prior to the shipment of the order, regardless of the credit limit provided to the Credit Applicant/Customer.
4.2 Payment may be made in the form of corporate check, credit card, electronic funds transfer, or money order. Credit cards accepted include major credit cards, purchase cards, and major bank debit cards including MasterCard, VISA, Discover, and American Express. Credit Card billing information must be verified on new customers prior to shipment of order. There is a $25 (USD) service charge on all returned checks.
4.3 Orders may be subject to credit approval by Seller. Customer agrees to submit such financial information as Seller may reasonably require for determination of credit terms and/or continuation of credit terms.
4.4 If Seller reasonably believes that the Customer's ability to make payments may be impaired or if Customer fails 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. The acceptance by Seller of any check to fulfill a portion of the balance will not constitute a waiver of Seller’s right to pursue the collection of any remaining balance.
4.5 If Customer fails to make payment when due, Seller may pursue any legal or equitable remedies, in which event Seller will be entitled to reimbursement of costs for collection and reasonable attorneys' fees.
5. TAXES AND FEES
5.1 US Shipments: When required by law, Seller will collect Federal, State and/or Local sale, use, excise, public utility, E911 and any other taxes that apply to a Customer's shipment, unless customer is tax exempt and Seller has a valid signed tax exemption certificate on file. Otherwise, the Customer will be responsible for payment of all applicable taxes. Taxes are in addition to the purchase price of the Product(s). Customer will bear any costs incurred by Seller in the collection of such taxes, including Universal Service Fees (USF) and Regulatory Program Fees. Fees may vary by locale and are subject to change without notice.
5.2 INTERNATIONAL Shipments: Customer will be responsible for all applicable taxes such as VAT, PST, HST, and/or GST charges along with brokerage fees and will be due at the time of delivery.
6. DELIVERY AND TITLE
6.1 Domestic Shipments of all Products shall be EXW Origin. Title and risk of loss will pass to Customer when Seller has made the goods available to the buyer at Seller’s premises. Customer bears all costs and risks involved in transporting the goods from the Seller’s premises.
6.2 International Shipments of all Products shall be FOB Origin. Title and risk of loss will pass to the Customer upon Seller’s delivery of the Products to the port of shipment, cleared for export. Customer shall bear all costs and risks to loss of or damage to the goods once such delivery has been made.
6.3 Customer is responsible for all delivery charges in addition to the purchase price of the Product(s). Seller will make selection of the carrier unless specifically designated by Customer.
6.4 The scheduled shipment and delivery dates provided by Seller are estimates only, based on production loading and/or third-party vendors’ and manufacturer's estimates at the time of order. Seller will make reasonable efforts to initiate shipment and schedule delivery as close as possible to Customer's requested delivery date(s). Seller is not responsible for any actual, incidental, or consequential damages arising by reason of any delay in delivery or shipment.
6.5 Delay in delivery of one installment will not entitle Customer to cancel any other installment(s). Delivery of any installment of Products within thirty (30) days after the date requested will constitute a timely delivery. Delivery of a quantity that varies from the quantity specified shall not relieve Customer of the obligation to accept delivery and pay for the Products delivered.
7. LIMITED WARRANTY
7.1 Seller warrants its Products against defects in material and workmanship, in which reasonable inspection would not have revealed, for one (1) year from date of delivery or otherwise agreed to by Seller in writing. Seller will repair, or replace parts, which prove to be defective during the warranty period. Any defect discovered after the warranty period has expired will be deemed to be outside the coverage of the warranty. This warranty shall become void and Seller will have no obligation with respect to Products that were subject to damage, misuse, neglect, accident; were opened, repaired, or modified in any way, or; were not used in accordance with any manuals and instructions that might be provided by Seller.
7.2 Seller’s liability arising out of any sale of Product(s) to Customer is expressly limited to, at Seller’s determination, either (1) refund of the purchase price paid by Customer for such Product(s), or (2) repair or replacement of such Product(s), with such remedies exclusive and in lieu of all others.
7.3 THE EXPRESS WARRANTY GRANTED ABOVE SUPERSEDES AND IS IN LIEU OF ALL REMEDIES AND WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS, AND LIABILITY FOR NEGLIGENCE. IN NO EVENT SHALL SELLER OR ITS DISTRIBUTORS BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL LOSSES, EXPENSES OR DAMAGES.
8. LIMITATION OF LIABILITIES
8.1 Seller is not responsible for any damages sustained through the use of any of its Products. Customer is responsible to follow the Product manual, instructions, and any other documentation provided by the Seller, and take the necessary precautionary measures when using or installing the Product(s).
8.2 Customer shall indemnify, defend and hold Seller harmless from any claims brought by any party regarding Product(s) supplied by Seller and incorporated into the Customer's product.
8.3 Customer's recovery from Seller for any claim, irrespective of the nature of the claim, shall not exceed the purchase price paid by Customer for the goods.
8.4 SELLER SHALL IN NO EVENT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST PROFITS, PROCUREMENT COSTS, OR ANY DAMAGES RESULTING FROM LOSS OF USE OR DATA ARISING OUT OF OR RELATED IN ANY WAY TO THE USE OR PERFORMANCE OF THE PRODUCT(S).
9. PRODUCT SAFETY NOTICE AND RESTRICTIONS
9.1 Customer acknowledges that the Product(s) are intended for commercial use only. DO NOT USE, OPERATE, OR SERVICE ANY PRODUCTS WITHOUT READING THE ENTIRE PRODUCT MANUAL FIRST AND OTHER RELVEVANT DOCUMENTATION, INCLUDING DIRECTIONS SET FORTH IN MAINTENANCE, SAFETY AND OPERATION INSTRUCTIONS, DRAWINGS, SAFETY NOTICES AND WARNINGS, AND OTHER INSTRUCTIONS THAT MIGHT BE FURNISHED BY SELLER. Warnings, Safety Notices, and Instruction statements describe conditions that may lead to personnel injury, including potentially fatal injuries, and/or equipment damage if the Product(s) are not properly used and warnings are not properly followed. Electrical shock can cause serious or fatal injury. Only qualified personnel should install, maintain or troubleshoot the Product(s).
9.2 Customer and its employees must comply with directions set forth in Product manuals, maintenance, safety and operation instructions, drawings, safety notices, warnings, and other instructions that might be furnished by Seller. Customer and its employees must use, reasonable care and all safety equipment necessary for the set-up, adjustment, operation, maintenance and repair of the Product(s) and the equipment into which the Product(s) are installed. Customer and its employees must not remove any safety feature or warning signs from the Product(s). Customer and its employees must ensure that the equipment into which the Product(s) are installed are used in accordance with all applicable laws, regulations, customs, permits and standards.
9.3 To reduce the risk of fire, electric shock or product damage, DO NOT expose the Product(s) to direct heat, rain, moisture, dripping or splashing. DO NOT place any object filled with any kinds of liquids on the Product(s). To prevent damage to LEDs and switches, DO NOT place the front panel of the Product(s) face down, and/or DO NOT press against the front panel. Always Turn "OFF" the AC power first when installing or removing Product(s).
10. INTELLECTUAL PROPERTY
Customer acknowledges that the Product(s) and accompanying documentation and other instructions provided by Seller contain proprietary technical knowledge embedded in hardware, software or technical information, or some combination, and that, as between Customer and Seller, the ownership of all patents, copyrights, derivative works, mask work rights, trademarks, trade names, trade secrets and all other intellectual property rights to the Product(s) shall remain with Seller. All data and information contained in Product(s) and accompanying documentation is proprietary and may not be disclosed, duplicated or used for procurement or manufacturing purposes, without prior written permission by Seller. Customer acknowledges and agrees that a sale of the Products does not constitute a sale of any of Seller’s or its suppliers’ intellectual property rights; except that Customer and its Customers shall receive a limited, non-exclusive right to such intellectual property solely for the purpose of, and only to the extent necessary for, use of the Product(s) in accordance with Seller’s published specifications and user documentation.
11. FORCE MAJEURE
11.1 Seller will 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, acts of God, war, declared or undeclared, riot, fire, flood, storm, slide, earthquake, power failure, product allocations, material shortages, labor disputes, transportation delays, unforeseen circumstances, acts or omissions of other parties, acts or omissions of civil or military authorities, Government priorities, strikes, severe weather conditions, computer interruptions, terrorism, epidemics, or quarantine restrictions.
12. EXPORT RESTRICTIONS
Customer acknowledges that the Product(s) acquired hereunder are subject to the export control laws and regulations of the U.S.A., and any amendments thereof. Customer confirms that with respect to the Product(s), it will not export or re-export them, directly or indirectly, either to (i) any countries that are subject to U.S.A export restrictions; or (ii) any end user who has been prohibited from participating in the U.S.A. export transactions by any federal agency of the U.S.A. government. Customer further acknowledges that the Product(s) may contain technical data subject to export and re-export restrictions imposed by U.S.A. law.
13. ASSIGNMENT
No rights, duties, agreements or obligations hereunder, may be assigned or transferred by operation of law, merger or otherwise, without the prior written consent of Seller.
14. WAIVER
All waivers must be in writing. The waiver or breach of any term, condition or covenant hereof, or default under any provision hereof, will not be deemed to constitute a waiver of any other term, condition, or covenant contained herein, or of any subsequent breach or default of any kind or nature. The failure of either party to insist upon strict performance of any provision of this Agreement, or to exercise any right, shall not be deemed to be a waiver of such provision or right, and no waiver of any provision or right shall affect the right of the waiving party to enforce any other provision or right.
15. SEVERABILITY
If any provision of these Terms is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect
16. NOTICE
Any notice or communication required or permitted in the Terms and Conditions must be made in writing and will be deemed to have been given on the day of service if served personally, the date stamped on all electronic communications, or 3 days after mailing if mailed by first class mail, registered or certified, postage prepaid, to the address set forth on the Order.
17. JURISDICTION AND GOVERNING LAW
This Agreement will be governed in all respects by the laws of the State of Delaware (without regard to any conflict of laws principles) as such laws are applied to agreements entered into and to be performed entirely within Delaware between Delaware residents. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. This Agreement shall be binding upon the Parties in the United States and worldwide. The Parties hereby submit to the exclusive jurisdiction and venue of federal and state courts within the State of Delaware to adjudicate any dispute arising out of or related to this Agreement.
18. LANGUAGE
These Terms and Conditions were negotiated and written in English. Any inconsistency between the Terms and Conditions as expressed in English and any other language shall, to the full extent permitted by applicable law, shall be resolved by reference to the English version.
