Andros Terms and Conditions of Sale
TERMS AND CONDITIONS OF SALE
1. Acceptance. Placement of any order with Andros Engineering Corporation (“Company”) constitutes acceptance of these Terms and Conditions of Sale (“Terms and Conditions”). No purchase order, sales agreement or other agreement shall bind Company unless accepted by Company. No order or agreement accepted by Company may be canceled without Company’s written consent. Company shall have no liability for delay, failure, or refusal to accept Purchaser’s orders or to ship products to Purchaser if the delay, failure, or refusal results from: (1)capacity restraints, demand in excess of available supply, labor strikes or lockouts; or (2) any cause beyond Company’s control.
2. Prices. The prices charged for products shall be those agreed to and acknowledged by Company in its sole discretion upon acceptance of a sales agreement or purchase order. Prices are subject to change without notice. Such published prices and terms may be changed by the Company at any time, and Purchasers will be notified of such changes, but any such change will become effective on the date indicated whether or not the Purchaser has actually received notice thereof. All prices are FOB Company plant (Paso Robles, CA) and do not include shipping, special packaging, insurance, taxes, duties and other similar charges, except as expressly provided by Company in its price list or on the invoice.
3. Taxes. In addition to the price of the products, Purchaser assumes and agrees to pay Company, and to hold Company harmless from and against all duties, imports, fines, sales, use, excise or other taxes or assessments imposed upon the products or any sales transaction by any national, state or local authority.
4. Terms of Payment. The Company shall invoice Purchaser upon shipment of products covered by the invoice and payment shall be received by the due date for payment on the invoice (“Due Date”). If the Due Date falls on a weekend or national holiday, the payment must be received on the next business day. Unless payment is received by the Company within 5 days of the Due Date, a service charge of eighteen percent (18%) per annum compounded monthly or the maximum rate permitted by applicable law, whichever is lower, shall be paid by Purchaser upon all late payments. If the payment is received 5 or more days after the Due Date, the service charge will be retroactive to the Due Date. If an early payment discount is stated on the invoice, Purchaser shall receive a cash discount off the price of the invoiced products, not including freight or special charges, if the payment is received and posted by our bank on or before the date for early payment. If payment is made via a check but is received by the bank after the date for early payment described on the invoice, discounts will be allowed if the postmark date is five days prior to the date for early payment described on the invoice. The Purchaser’s account must be current (i.e. there are no past due invoices on the account) to qualify for an early pay discount. All rebates and credit memos must be deducted from the account prior to application of any cash discount.
5. Security Interest. In consideration for the sale of products to Purchaser, Purchaser grants to Company a purchase money security interest in the products, which security interest shall extend to all parts, repairs, and accessories now or thereafter attached to the products, and to all proceeds there from, including, without limitation, accounts, general intangible and chattel paper, to secure payments to Company of all monies now or hereafter owed by Purchaser to Company in connection with sale of the products to Purchaser. Purchaser agrees to execute and deliver whatever documents Company may require in order to enable Company to perfect its security interest. Purchaser’s failure to pay all amounts owed to Company in full and when due shall constitute a default, and shall give Company all rights of a secured party under the California Uniform Commercial Code.
6. Risk of Loss. Delivery of products by the Company to a carrier (which term includes agents or employees of the Purchaser as well as common or contract carriers) for transportation to the Purchaser, or to a Company designated third party warehouse or transfer company, shall constitute delivery to the Purchaser, and the Purchaser shall bear all risk of loss thereafter.
7. Title to Goods. Title to and ownership of products shall pass to the Purchaser upon delivery to the Purchaser, as provided in paragraph 6 above.
8. Nonconformity of Goods. Purchaser may not reject or revoke its acceptance of any product(s) unless the nonconformity of such product(s) is substantial. No nonconformity or defect in any lot or installment shall constitute grounds for claiming breach of the entire purchase order or sales agreement, and any lots or installments whose conformity Purchaser does not dispute shall be paid for in accordance with these terms and conditions, regardless of any dispute concerning other shipments, installments, or undelivered products. Company reserves the right to cure, by repair or replacement, any defects within a reasonable time after receiving written notice of such defects from Purchaser. Purchaser has 15 days following delivery of products hereunder to give Company written notice of any claimed defect in such products. Failure to give timely notice, as provided above, shall be deemed irrevocable acceptance of such products.
9. Returns and Order Cancellations. For all products, written permission must be received from Company prior to return of any product. Company will not accept returns unless the products are in new, resalable condition. Returned items are subject to a twenty percent (20%) restocking charge unless return occurrence is due to Company error. Credit will be based on invoice price. In addition, the Purchaser is responsible for arranging shipment and paying all freight charges associated with returning the product to Company’s warehouse. Special, custom products, including all assembled equipment, are manufactured to order and are non-returnable. Returns will not be accepted if requested more than 90 days after invoice date unless return occurrence is due to Company error. All Sales Order cancellations will be treated as a Return and subject to the conditions above.
10. Product and Packaging Changes. Company reserves the right to make changes of any kind to the products, packaging, and brand names, which it deems necessary or appropriate in its sole discretion, without providing notice to Purchaser and may deliver revised products (including, but not limited to, revised designs, models, packaging, or brand names) against any and all orders.
11. Limited Warranty. The link herein provides the warranty from the Company for the products specified. THE REMEDIES EXPRESSED
THEREIN ARE THE ENTIRE WARRANTIES OF COMPANY FOR ITS PRODUCTS DESCRIBED THEREIN AND ARE IN LIEU OF ANY OTHER
WARRANTIES, EXPRESSED OR IMPLIED, ORAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Neither Purchaser nor any other party is authorized to change, modify, or extend the terms of these warranties or to make any representation or warranty not contained in the warranty in the following link http://www.andros-eng.com/warranty
12. Shipping. All Shipments are FOB Paso Robles and are the responsibility of the Purchaser. All additional taxes, duties, other fees for international shipments are the responsibility of the Purchaser.
13. Packaging. No products are sold in less than package quantity.
14. Minimum Order. A minimum of US $250.00 net per shipping location for new components. A $30.00 handling charge will be applied for orders below minimum. There is no minimum order value for replacement parts.
15. Demurrage. Purchaser will accept all shipments of products from the carrier promptly and will pay any demurrage or storage charges caused by its failure to do so.
16. Shortages. All claims that products were shipped short by the Company must be made by the Purchaser in writing within ten days after receipt of the shipment in question.
17. Excuse. A basic assumption of the sales agreement or purchase order (as the phrase “basic assumption” is used in the California
Uniform Commercial Code) is the absence of any fire, explosion, flood, riot, labor dispute, shortage accident, act of God, law, regulation, or other event or circumstance beyond Company’s reasonable control which prevents or delays Company’s performance. Any delay, failure to deliver, or other breach by Company, wholly or partially caused by any such event or circumstance, shall be excused.
18. Limitation of Damages. Company and its affiliates, successors and assigns, and each of their respective directors, officers, employees, and agents shall in no event be liable to Purchaser for any claim for direct, indirect, special, incidental, punitive or consequential damages of any types resulting from or relating to these Terms and Conditions of Sale and/or Company’s supply or sale of the products to Purchaser.
19. Severability. The invalidity, in whole or in part or any of these terms or conditions, shall not affect the validity or enforceability of any other term or condition.
20. Applicable Law. These terms and conditions of sale shall be construed in accordance with, and all disputes hereunder, shall be governed by the laws of the State of California, U.S.A.
21. Venue; Arbitration. Disputes that may arise in connection with the subject matter, breach or interpretation hereof including limited warrant provisions expressed herein shall be exclusively resolved by arbitration in Paso Robles, California, U.S.A. before a single arbitrator appointed pursuant to the California Code of Civil Procedure.
22. Attorney Fees. In any arbitration, action or other proceeding relating to the sale of products hereunder, or the breach or interpretation hereof, the prevailing party shall be entitled to reasonable attorney fees and costs, as determined by the trier of fact.
23. No Assignment. Purchaser may not transfer or assign any of its rights or obligations hereunder without Company’s prior written consent, which may be withheld by Company in its sole discretion. All purported transfers or assignments without such consent are void. Company may transfer or assign any of its rights or obligations hereunder without Purchaser’s prior written consent.
24. Headings. The paragraph headings in these terms and conditions are for convenience only, and form no part of these terms and conditions, or any other agreement. Such paragraph headings are without legal effect.
25. Notice. Any notice or other communication required or permitted hereunder shall be sufficient if given in writing by registered or certified mail, return receipt requested, postage prepaid, and addressed to Purchaser at its address (as it may appear in Company’s records), or to Company at P.O. Box 856, Santa Margarita, CA 93453 USA. Alternatively, notice may be provided in writing by facsimile transmission to Purchaser at its place of business, or to Company at (805) 227-2804. Notice shall be effective upon receipt.
26. Waiver. Company’s failure to insist, in one or more instances, upon the performance of any of the foregoing terms or conditions shall not be construed as a waiver or relinquishment of Company’s right to such performance, and Purchaser’s obligation shall continue in full force and effect.
27. Amendment. These terms and conditions may be amended only by written amendment executed by Company.
28. Export/Import. All sales hereunder shall at all times be subject to the export control laws and regulations of the United States
Government and any amendments thereof. Purchaser agrees that it shall not make any disposition, by way of trans-shipment, reexport, diversion or otherwise, except as said laws and regulations may expressly permit, of U.S. original goods purchased from Company, other than to the ultimate country of destination specified on Purchaser’s order and/or declared as the country of ultimate destination on Company’s invoices.
29. Intellectual Property. Purchaser acknowledges that it has no right, title, licenses, or interest in the Company’s trademarks, trade names, copyrights, patents, or other intellectual property, and that it will take no action to register or otherwise interfere with such rights of Company.
30. Anti-Bribery Laws. Purchaser represents, warrants and covenants that it has not paid, offered or agreed to pay, authorized the giving of, or caused to be paid, directly or indirectly, money or anything of value to any government official in connection with the purchase and any resale of the products ordered and further that it has not and will not violate any anti-bribery laws in connection with the purchase and any resale of the products.
31. Relationship of the Parties. Purchaser acknowledges and agrees that it is an independent contractor and that it is not an employee, agent, representative, franchisee, partner, or joint venture of or with Company, has not paid and will not pay a franchise fee to Company, and is free to operate its business in accordance with its independent business judgment, provided that in doing so it does not violate any provision of these Terms and Conditions of Sale. Purchaser has no authority to bind Company by representations, statements, agreements, conduct, or in any matter whatsoever. Company shall not be liable for any debts, accounts, obligations, or other liabilities of Purchaser, its agents, employees, or representatives. It is expressly recognized that no fiduciary relationship exists between the parties.
32. Entire Agreement. Except as otherwise expressly provided herein, and in any Dealer Agreement between the Company and
Purchaser (including any Riders or other addenda thereto) these Terms and Conditions, and any attachments affixed by Company, together with any other terms and conditions provided by the Company to Purchaser on an invoice or purchase order or in any Dealer
Agreement between the Company and Purchaser (including any Riders or other addenda thereto), constitute the entire agreement between Company and Purchaser with respect to the sale of products and supersede all prior representations, understandings and agreements with respect to such sale. These Terms and Conditions shall prevail over those of any invoice, purchase order, agreement, or other document or understanding of Purchaser pertaining to this sale.