GENERAL TERMS AND CONDITIONS OF SALE
These terms and conditions govern the sale of Products ("Products") and the provision of services ("Services") by Adam Technologies, Inc. and its divisions, subsidiaries and affiliates (ADAM TECH). 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 ADAM TECH’s commencement of performance or delivery shall be deemed or constituted as acceptance of Buyer’s supplemental or conflicting terms and conditions. Buyer’s acceptance of the Products and/or Services from ADAM TECH shall be deemed to constitute acceptance of the terms and conditions contained herein.
1. QUOTATIONS & DOCUMENTATION
Quotations are always made without obligation and are subect to change by ADAM TECH without notice. Quotations are valid for not more than 30 days from the date the quotation is made by ADAM TECH unless specifically stated otherwise in the quotation.
Orders shall be submitted to ADAM TECH in writing and shall specify the products and delivery date desired by the buyer. All orders shall be subject to approval and acceptance in writing by a duly authorized agent of ADAM TECH. ADAM TECH may refuse to accept any order. ADAM TECH may designate certain products as non-cancelable, non-returnable ("NCNR"). An order acknowledgment shall be directed by ADAM TECH to the Buyer indicating ADAM TECH's interpretation of the order and ADAM TECH's intention to ship as shown on the acknowledgment. It will be the Buyer's responsibility to notify ADAM TECH immediately upon receipt of an order acknowledgment of any discrepancies that may exist; otherwise, the terms of the order acknowledgment shall be binding upon the Buyer. All written quotations shall be valid for thirty (30) calendar days from the date of quotation. Under no condition will Adam Tech deviate from the terms and conditions listed in our general terms and conditions of sale and rejects any conflicting terms as may be shown in customer’s purchase order. Adam Tech terms will prevail in the event of any conflict with customer purchase order. A release of a customer purchase order assumes that customer agrees with all Adam Tech terms listed herein. Any specific deviation must be noted on the Adam Tech quotation or a separate document to customer detailing acceptance of the deviation. All custom product orders for special made parts including parts quoted NC NR (Non-Cancellable Non-Returnable) including blanket orders must be fully released and shipped within 12 months of order entry. In certain cases rescheduling will be allowed but in no case will orders be allowed to ship beyond one year from order entry.
3. STOCKING PACKAGES
Adam Tech may enter into agreements with distributors to produce products for an initial stocking package. Unsold products from the initial stocking package are fully returnable to Adam Tech after 2 years. All returned product from the initial stocking package will receive account credit which will only be applied to future purchases.
4. CUSTOM TOOLED PRODUCTS
When tooling must be built to produce a new custom product, ADAM TECH will provide 1st article samples for Buyer approval prior to mass production. Buyer agrees to review 1st article samples for a maximum of 14 business days at which time approval must be granted provided the product meets the proposed Adam Tech specification. If buyer does not approve 1st article samples within 14 business days of submission, buyer agrees the product submission meets specification, the 1st article samples are approved and their purchase order for tooling (amortized or otherwise) or production parts (whichever applies) is approved, released and billable with payment due according to Paragraph 7 Terms of Payment herein. In any event custom tooled products are Non-Cancellable Non-Returnable. Non-Recurring Engineering Charges are the costs to design tooling and manufacturing processes. Adam Tech owns the tooling and reserves the right to use the tooling at its discretion.
5. DELIVERY AND SHIPMENT
ADAM TECH will ship all orders F.O.B. shipping point, no freight allowed, and by such means as ADAM TECH, in its discretion, determines to be most feasible; however, ADAM TECH will endeavor whenever practical to comply with the Buyer's request with regard to the mode of shipment and routing. All transportation charges for air shipments shall be at customer's expense. Shipping dates on the order acknowledgment are estimated and ADAM TECH shall not be liable for loss or damage due to delay in manufacture or delivery resulting from any cause. In no event shall ADAM TECH be liable to Buyer for consequential or special damages due to any cause. 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. 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 ADAM TECH at ADAM TECH’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 ADAM TECH’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 ADAM TECH’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.
6. AGING FOR CONSIGNMENT, VENDOR MANAGED INVENTORY, & STOCKING PROGRAMS
Adam Tech may enter into agreements with customers to produce certain quantities of productheld at either Adam Techan Adam Tech controlled facility, the customers facility or a Third Party Managed facilityto fulfill customer forecasts and/or an agreed uponconsignment arrangement with the customer. Customer agrees that any products allocated to them for any project in any of the aforementioned facilities is fully billable to customer after the product has been stored in any of the aforementioned facilities for 30 days or more. At Adam Tech’s request, Customer will promptly release the product stored for 30 days or more and/or schedule payment to Adam Tech according to the agreed upon payment terms.
All sales, use and other taxes, federal or state, payable on account of a sale, shipment or delivery shall be for the account of and paid by the buyer.
8. SHIPPING LIABILITY AND CLAIMS
ADAM TECH shall not be liable for damages to or loss of any ADAM TECH Products occurring after delivery by ADAM TECH to a carrier for shipment. All claims for damages or losses in transit shall be asserted directly against the carrier by the customer. Notwithstanding any other provision to the contrary contained herein, it is understood and agreed that ADAM TECH shall have the right, but not the obligation, at the Buyer's sole expense, to insure any shipment of ADAM TECH Products against loss or damage in transit.
9. TERMS OF PAYMENT
Net 30 is offered to all customers who have submitted credit information and have a satisfactory credit history. In each case, an appropriate credit limit will be established. After 60 days one and one half percent (1-1/2%) per month may be added to any balance owed, and in event of default reasonable collection charges and/or attorney fees charged. ADAM TECH 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 ADAM TECH 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 ADAM TECH 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 ADAM TECH to transfer, create, perfect, preserve, protect and enforce this security interest. Adam Tech agrees to provide a product that meets agreed specifications.
10. TECHNICAL ASSISTANCE OR ADVICE
Any technical assistance or advice offered by ADAM TECH 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. ADAM TECH 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 ADAM TECH to provide any further or additional assistance or advice. ADAM TECH 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 ADAM TECH’s representatives in connection with the Products or Services constitute a representation or warranty, express or implied. Buyers should therefore test each and every product within their application to determine the product’s suitability.
11. PRODUCT CHANGES
ADAM TECH shall have the right, at any time without notice to the customer to change the design, specifications or performance of the ADAM TECH products or to discontinue the manufacturing of any model or product. ADAM TECH shall have no obligations to modify ADAM TECH products previously ordered or delivered to reflect such design changes or modifications. Current details of safety agency approvals are kept on file and are available upon request. Samples are free of charge and it is recommended that buyers request samples for evaluation to determine suitability prior to purchasing.
12. RETURNS OR CANCELLATION OF ORDERS
A. Certain items are non-cancellable and non-returnable including but not limited to, less than full size pin headers, female headers & terminal blocks, connectors with added options, custom connectors, cable assemblies, large quantity blanket orders and special reduced price quotations.
B. Orders which have been accepted by ADAM TECH may be canceled in whole or in part only with the written consent of ADAM TECH and the payment by the Buyer to ADAM TECH of a cancellation charge which will be assessed by ADAM TECH on the basis of the processing stage of the order at the time of cancellation. No order may be canceled after shipment. Requests for extensions of shipment dates may be treated as order cancellations by ADAM TECH.
13. STANDING INSTRUCTIONS
ADAM TECH does not accept standing, general or blanket instructions. Each transaction must be accompanied by full instructions on the order.
14. FORCE MAJEURE
ADAM TECH will not be responsible for any losses or damages to Buyer (or any third person) whether occasioned by deviations in performance or the non-performance of any of ADAM TECH's obligations hereunder, or loss of or damage to goods when caused directly or indirectly by or in any manner arising from any casualty, revolution, act of God, Act (including delay or failure to act) of any government authority (dejure or defacto), or (declared or undeclared) riot, act of buyer, strikes or other labor difficulties, shortage of labor, supplies and transportation facilities or any other cause or causes beyond his control or the control of its supplier.
15. ADAM TECH LIMITED WARRANTY
All ADAM TECH products are warranted against defects in workmanship, material and construction for a period of one (1) year from the date of shipment if the products have been properly installed, used and maintained. All ADAM TECH products are sold without assurance as to their use, applicability, functionality, suitability or fitness for any particular use and application. Each end user of all products listed herein assumes all risk and liability for the actual use and functionality of all products listed herein. Samples are free of charge and each Buyer/end user is encouraged to test and evaluate each product for their specific intended use. ADAM TECH shall not be deemed liable for any injury resulting from the use or inability to use any product herein. In the event that any such implied warranties may not be entirely disclaimed, such implied warranties, and all other warranties are limited to a one (1) year period from the date of shipment. The obligation of ADAM TECH under this limited warranty and all the other warranties is limited to the furnishing of new parts free of charge in exchange for parts which have proven defective and does not include any other costs, such as the cost of removal of the defective part, installation, labor or consequential damages of any kind or air freight charges to supply replacement goods. The exclusive remedy being to require that new parts be furnished. Under no circumstances will ADAM TECH's liability exceed the contract price for the products claimed to be defective. ADAM TECH has taken reasonable efforts to insure that all drawings, illustrations, specifications, statements and agency approvals contained in our catalog and on our website are accurate as of the date of this publication. However ADAM TECH does not guarantee in any way the accuracy or specificity of the information provided. ADAM TECH expressly disclaims all implied warranties regarding this information, ADAM TECH will in no case be liable for Buyers use, or the results of the Buyers use of any products based upon written materials provided. It is the Buyer’s responsibility to verify the results of Buyer’s use of this information and verify the performance of the Product itself in Buyer’s own particular engineering and product environment and Buyer assumes the entire risk of doing so or failing to do so. All warranty claims must be make in writing to ADAM TECH not later than thirty (30) days after the expiration of the warranty or they will not be honored.
In no event will Adam Tech or its officers, employees, affiliates or distributors be liable for any direct, indirect, special, incidental or consequential damages (including but not limited to, damages for lost business, lost profits, business interruptions and loss of information) arising from your use of, or your inability to use any product based upon any written materials provided, even if Adam Tech has been advised of the possibility of such damages. In no event will Adam Tech’s liability to you for any cause whatsoever, and regardless of the form of action, exceed $500.
Buyer agrees to hold ADAM TECH harmless from, defend and indemnify ADAM TECH against damages, claims, and expenses arising out of subsequent sales of ADAM TECH goods or products containing components sold by ADAM TECH and based upon personal injuries, deaths, property damage, lost profits and any other manners for which buyer, its employees or subcontractors, or any third party are or may be to any extent liable, including, without limitation, penalties imposed by the Consumer Product Safety Act and liability imposed upon any person pursuant to the Magnuson-Moss Warranty act as now in effect of hereafter amended. The warranties and remedies provided for herein by ADAM TECH are available only to Buyer and shall not extend to any other person.
18. INVALIDITY AND SEVERABILITY
Should any of these General Terms & Conditions of Sale be or become invalid, that fact shall not affect the validity of the other provisions. The invalid provision shall be replaced by a valid provision which as far as possible satisfies the same legal, economic and originally intended purpose.
19. DISPUTE RESOLUTION
(a) 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 and Services performed, shall be resolved pursuant to this Section 16 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 New Jersey, 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 State of New Jersey, and both parties expressly acknowledge that personal jurisdiction and venue shall lie exclusively and is properly in New Jersey. 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 New Jersey, 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 16 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 Jersey, 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.
20. ENTIRE AGREEMENT
This Agreement 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 ADAM TECH 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 ADAM TECH are done so only in accordance with these terms and conditions.
ADAM TECH's obligations under these terms and conditions may be performed by divisions, subsidiaries or affiliates of ADAM TECH. 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.