Sole agreement and acceptance: Except as provided in the terms of the “Notices” paragraph below, the terms and conditions set forth herein contain the sole, entire and exclusive agreement between eConnekSM and the Buyer in this transaction and supersede all prior discussions, proposals, negotiations, representations, and agreements; except as expressly provided herein any additional or conflicting terms, whether or not material, shall not, in any manner, govern the relationship between eConnekSM and Buyer. eConnekSM objects to and shall not be bound to any terms or conditions not set forth herein, including any additional or different terms on Buyer's purchase order, acknowledgment, shipping documents, or otherwise which shall be accepted for billing purposes only, and any inconsistencies or differences therein with the provisions hereof shall be null and void. Shipment pursuant to Buyer's order containing different or additional terms does not constitute acceptance of such terms, and eConnekSM will not be bound by the laws of any land regarding its ability to provide commodities, technology, software or support in the event an export license is required and is rejected by the U.S. Government. ANY WAIVER, MODIFICATION, OR AMENDMENT OF THESE TERMS AND CONDITIONS SHALL ONLY BE EFFECTIVE AGAINST eConnekSM ONLY IF SUCH WAIVER, MODIFICATION, OR AMENDMENT IS CONTAINED IN A WRITTEN INSTRUMENT DULY EXECUTED BY eConnekSM.
Acceptance: All orders are subject to acceptance by eConnekSM. eConnekSM complies with all laws and regulations and requires all international orders to be analyzed for usage and final destination. Acceptance and shipment of orders is contingent upon obtaining any required governmental authorizations. The time for certain compliance checks and resulting requirements may take in excess of the 48 hour turnaround.
Price and payment: All orders shall be priced in accordance with eConnekSM’s price quotation and confirmed by eConnekSM’s Order Acknowledgement. Payment must be received via credit card prior to shipment of goods. These are the terms of payment for all shipments. If at any time in eConnekSM’s opinion, the financial responsibility of Buyer becomes impaired or unsatisfactory to eConnekSM, or inadequate to meet the obligations hereunder, the terms of payment may, at eConnekSM’s option, be revised or withdrawn, and eConnekSM may require cash or other satisfactory security before making further shipments to Buyer. Acceptance by eConnekSM of less than full payment shall not be a waiver of any of eConnekSM’s rights. In addition to any other legal remedy, if Buyer fails to fulfill the terms of payment, eConnekSM may defer further delivery of goods hereunder or may, at its option, cancel all further delivery of goods to Buyer. In the event eConnekSM is required to commence collection action to recover unpaid invoices of goods sold and delivered, eConnekSM shall be entitled to interest on the unpaid balance at the highest legal rate permitted from the due date of invoice, attorney's fees, and costs of suit. Delays in transportation shall not extend term of payment. All prices are subject to adjust without any prior notice. Should the change in the price change, such increases or decreases will be invoiced automatically without notice. eConnekSM reserves the right to renegotiate prices on that portion of an order scheduled for shipment more than six months from the order entry date, unless eConnekSM specifically agrees to fixed prices beyond six months. Unless otherwise state herein, all tools required to produce the goods sold will remain the property of eConnekSM.
Taxes: All prices are quoted exclusive of any tax, fee, duty, assessment or charge, unless specifically stated and if paid by eConnekSM, shall be added to the price or prices set forth herein. Any taxes, where applicable, will be billed as separate items unless Buyer provides eConnekSM with properly executed tax exemption certificate.
Shipments: Unless otherwise specified, boxing and packing for domestic shipment are included in the quoted price. When special domestic or export packing is specified involving greater expense than customarily supplied, a charge may be made to cover such extra expense. When ordering, state clearly the method of shipment. Unless otherwise specified, we normally use the best, least expensive surface transportation. Reasonable care is exercised in packing our products for shipment and we assume no responsibility for delay, breakage, or damage after having made delivery in good order to the carrier. All claims for breakage and damage should first be made to the carrier, but we will be glad to render all possible assistance in securing satisfactory adjustment of such claims.
Delivery: Shipment dates are estimates only, are subject to production limitations and factory schedules, and hence are not guaranteed. In no event shall eConnekSM have any liability, consequential or otherwise, as a result of eConnekSM’s delay or failure to deliver product for any reason. All international sales will be shipped EX Works-shipping point. If shipment directions for logistics from Buyer are lacking, eConnekSM will use its discretion in choice of carrier and will prepay freight and bill the cost to Buyer. eConnekSM reserves the right to make partial shipments unless advised by Buyer and to be paid on the terms hereof for such deliveries. eConnekSM reserves the right to allocate inventories and production. Each order shall constitute an independent transaction and payment therefore shall be due accordingly. If Buyer is in default at any time under any order with eConnekSM or eConnekSM is dissatisfied with Buyer's financial condition. eConnekSM shall have the right, without prejudice to any other of its rights, of suspending deliveries until such default or condition is remedied.
Title and risk of Loss: Title and risk of loss of the goods shall pass to the Buyer upon delivery of goods to carrier at shipping point. eConnekSM is under no obligation to insure shipments unless specifically requested by Buyer and then only at Buyer's expense and valuation.
Allocation, etc.: eConnekSM shall have the right to curtail deliveries or allocate its supply of materials among all of its customers in any manner which in its sole discretion selects, and eConnekSM shall not be responsible in any manner for losses or damages which Buyer may incur as a result of any such, curtailment, or allocation by eConnekSM. eConnekSM shall not be required to remedy any goods not so delivered.
Limited Warranty: eConnekSM warrants only that the goods at the time of shipment furnished shall meet the specifications stated herein or attached hereto. Any technical advice given by eConnekSM in reference to the use of its products is given gratis and without any warranty whatsoever as to advice given or results obtained. THE WARRANTY GIVEN IN THIS PARAGRAPH IS IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. Any model or sample shown to Buyer was merely illustrative and was not a warranty that the goods would conform to the sample. No agent, employee, or representative of eConnekSM has any authority to bind eConnekSM to any warranty concerning the goods sold hereunder other than that set forth in these terms and conditions, and unless such is specifically included within these terms and conditions, it shall not be enforceable by Buyer. This warranty extends only to Buyer and does not extend to purchasers or users of Buyer's products
eConnekSM’s liability and buyer’s EXCLUSIVE REMEDY are expressly limited to the replacement of defective goods with conforming goods, EXW-Shipping Point, or credit for the net unit billing price. Such replacement or credit will be made only if:
Return Policy: Returned merchandise for credit will be accepted on manufacture defective goods only. Any returned merchandise which is damaged due to improper handling by the buyer, repackaging of the goods, misuse or negligence will not be accepted for credit. The items will be inspected at the time of return. If the items returned are not rendered as defective due to manufacturing error, the return shipping back to the buyer will be the responsibility of the buyer. Exchanges can be made within 15 days of receipt on any items that are not damaged and must be in their original packaging. All shipping charges on exchanges will be the buyers’ responsibility.
Indemnification: Buyer agrees to indemnify and defend eConnekSM against any claim or litigation, or to pay or reimburse any judgment and all loss and expense costs (including reasonable attorney fees) incurred in connection with any claim or litigation which asserts or is based upon any alleged design defect in eConnekSM products to the extent that the Buyer provided design information or related parts or components to Hypertronics for its products.
Exclusive Remedy of Buyer: eConnekSM’s liability and Buyer's EXCLUSIVE REMEDY is expressly limited, at eConnekSM’s option, to the replacement thereof with conforming goods at the shipping point, or credit for the net unit billing price, but such replacement or credit shall be made only if:
Limitation of liability: The remedies of Buyer set forth herein are exclusive. eConnekSM assumes no liability except as expressly provided in these terms and conditions, and in no event shall eConnekSM be liable for any consequential, incidental, special or indirect damages, arising out of or in connection with this agreement, whether arising in contract, in tort, under any warranty or otherwise, and whether or not based on any negligent act or omission or any other basis. Buyer assumes all risk, liability, and damage resulting from the use of the goods, whether used singularly, or in combination with other goods, or technical advice furnished, or of specification changes.
Certification of material goods: Should Buyer request certification of materials or goods after sale, eConnekSM reserves the right to quote additional charges for such request. Unless otherwise included under these terms and conditions, no certification is given concerning either the material or goods sold hereunder.
Patent infringement: eConnekSM reserves the right to discontinue deliveries of any material, the manufacture, sale or use of which in eConnekSM’s opinion would involve patent infringement. Buyer shall indemnify and hold harmless eConnekSM, its successors and assigns and affiliates against and from any and all damages, claims, and judgments for damages and costs arising out of any suit alleging infringement of any U.S. or foreign patent or trademark by the goods supplied by eConnekSM under this order made in accordance with any design and/or specification furnished by Buyer to eConnekSM; and Buyer shall, if eConnekSM desires, defend eConnekSM, at Buyer's expense in any such suits for alleged infringement.
No Intellectual Property Licenses: eConnekSM retains ownership of all designs, inventions and other intellectual property rights in all goods sold to Buyer, regardless of any contribution by Buyer, and is not providing Buyer with any license thereto, expressed or implied, unless specifically identified in these terms of sale.
Cancellation: eConnekSM may cancel the Agreement formed by these terms and conditions at any time in the event that Buyer shall fail to perform or observe any term or condition hereof by giving Buyer written notice of cancellation. Cancellation hereunder shall not prevent eConnekSM from pursuing any other remedy available to eConnekSM by law or from seeking all damages to which eConnekSM may be entitled. Buyer may cancel an order only upon prior written notice and upon payment to eConnekSM for reasonable and proper cancellation costs which shall not exceed the contract price for the items canceled. Upon Buyer's cancellation of this order, Buyer will pay for and accept delivery of any goods already in production or that have been shipped.
Assignment and Applicable Law: This Agreement shall extend to and be binding upon the parties hereto, their successors and assigns, provided, however, that Buyer may not assign this Agreement without the written consent of eConnekSM and any such assignment without consent shall be void. This contract is to be governed by and construed in accordance with the laws of Massachusetts (other than conflicts of laws provisions).
Notices: All notices hereunder shall be deemed given if delivered in writing personally or sent by certified mail or facsimile to Buyer or eConnekSM at the addresses set forth on the front of this form. Any notice given by certified mail shall be deemed given three business days following the time such notice is deposited in a U.S.A. post office, postage prepaid.
Confidentiality: All obligations of confidentiality owed to eConnekSM or its affiliates by Buyer with respect to any materials or information furnished to Buyer subject to such obligations shall remain in full force and effect and nothing herein shall affect such obligations.
Quantity: eConnekSM may deliver, and Buyer will accept delivery of, a greater or lesser quantity not to exceed ten percent (10%) of that ordered.
Changes: No changes can be made in the goods ordered hereby without the consent of eConnekSM. eConnekSM reserves the right to adjust the price, change the delivery schedule or make any other revisions in this order with respect to any such approved changes. eConnekSM reserves the right to make changes in design at any time and without incurring any obligation to provide changes on the units previously purchased, or to continue to supply obsolete items or earlier versions of changed items. Errors subject to correction: All typographical, stenographic and arithmetical errors are subject to correction. Verbal Purchase Orders: If verbal purchase orders are entered by eConnekSM for production and/or shipment prior to receipt of written documentation from Buyer, such orders are accepted as an accommodation to Buyer and in such instances, the sale is to be governed by the terms and conditions hereof, and no others, regardless of any written documentation subsequently furnished by Buyer.
Export-Import Controls: The Buyer expressly assumes the responsibility for export clearance in accordance with Parts 748 and 758 of the Export Administration Regulations, and shall provide its nominated freight forwarder with a power of attorney or other authorization to act on Buyer’s behalf. Buyer .shall make every effort to comply with US laws and regulations. At a minimum the Buyer shall not, except after fully complying with all applicable laws, facilitate or support any shipments to U.S. Embargoed/Sanctioned countries (as of 01/2008 Burma, Cuba, Iran, North Korea, Sudan, and Syria), Denied persons as defined by the U.S. Commerce Department Bureau of Industry and Security, U.S. Treasury Department, Office of Foreign Assets Control, and State Department, Directorate of Defense Trade Controls, Proceed with transactions with knowledge that a violation occurred or is about to occur, Support an export, reexport, and/or transfer: proliferation activities and technical assistance of encryption items, End Use/User Controls- Nuclear, Missile Tech, Chem/Bio, WMD, Entities list-supplement 4, In-transit shipments and unlading. Such exports, reexports and other conduct are prohibited unless authorized by a license or regulation. eConnekSM shall not be liable if any authorization is delayed, denied, revoked, restricted, or not reviewed, and Buyer shall not be relieved of its obligation to pay eConnekSM in such event.
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