Terms & Conditions of Sale
1. ACCEPTANCE OF ORDER. The terms and conditions in this document, set forth below and on the face hereof, form the agreement ("Contract") between the purchaser identified on the reverse side hereof ("Purchaser") and American ProImage, Inc. ("API") with respect to purchase of the assemblies, components, services and/or software identified herein (the "Products"), and shall prevail notwithstanding any variance with the terms and conditions of any order for the Products submitted by the Purchaser. Purchaser shall be deemed to have accepted the terms and conditions set forth herein unless Purchaser expressly rejects such terms in writing prior to the earlier of (a) five (5) days after a document containing these terms and conditions is first provided to Purchaser; or (b) acceptance of the Products hereunder. No modification of any terms and conditions set forth herein will be valid or binding on API unless set forth in a written document signed by an authorized representative of API. Neither API’s acknowledgment of a purchase order nor API's failure to object to conflicting, contrary or additional terms and conditions in a purchaser order shall be deemed an acceptance of such terms and conditions or a waiver of the provisions hereof. Purchaser may not cancel or modify such order, in whole or in part, without the express written consent of API.
2. PRICES AND TAXES. The prices shown are F.O.B., API's facility in Cerritos, California, based on continuous manufacture or assembly for the rates of delivery specified, and are based on the terms and conditions set forth in this document. Purchaser will pay all additional costs incurred by API due to interruptions, change in delivery schedule, engineering changes or modifications caused or requested by Purchaser.
All prices are quoted, all orders accepted, and all billings rendered exclusive of federal, state and local excise, sales, use, and similar taxes. The amount of any present or future excise, sales, use, manufacturer's or state or local privilege, or similar tax applicable to the sale of the Products hereunder, or to this Agreement, shall be paid by Purchaser. Such taxes, when understood by API to be applicable, will appear as separate additional items on the invoice/order acknowledgments. A proper tax exemption certificate, if received by API from Purchaser prior to shipment, will be conditionally accepted as evidence of non-applicability of sales/use taxes, subject to acceptance by taxing jurisdictions. Failure of API to include taxes on any invoice, acknowledgement or statement shall not constitute an admission or waiver by API or otherwise relieve Purchaser from its obligation to pay applicable taxes hereunder.
Notwithstanding any price quotation previously provided to Purchaser, the minimum charge per order is $250.00.
3. PAYMENT. The terms of payment shall be specified on API’s invoice. Terms listed as "net" require payment in full within the number of days shown from the date of invoice. Each invoice will be dated the date of delivery of the Products to a common carrier in accordance herewith. Purchaser shall pay API promptly on demand interest on overdue accounts at the maximum rate permitted by law.
If Purchaser fails to make payment in accordance with API’s Payment Terms or seeks to delay shipment, assembly or manufacture of the Product, API may, in it sole discretion, treat such request as an anticipatory breach or repudiation of the contract. In such event, API shall, in addition to any and all other rights and remedies it may have, be entitled to interest on the total unpaid and unrecovered price of the contract, from the time of breach until the Products are resold and/or until damages are actually recovered; in addition, API may, in its sole discretion, issue invoices dated as of the date API was prepared to ship, and payment due date and accrual of interest shall be determined based on such invoice date. Products held by API for Purchaser by reason of Purchaser's delay shall be held at the risk and expense of Purchaser.
Credit terms are subject to change at any time. If, at any time, in the sole judgment of API, the financial condition of Purchaser does not justify continued production, assembly or shipment on the credit terms specified, API may require full or partial payment prior to completing production, assembly or shipment of Products. In the event such payment is not received within a reasonable time not exceeding 30 days, API shall be entitled to treat such failure as a breach of the contract. The foregoing right shall not limit or preclude any other right or remedy API may have.
4. DELIVERY AND RISK OF LOSS. All Products shall be deemed delivered to Purchaser when placed in the hands of a common carrier or the United States Postal Service at API's facility in Cerritos, California for delivery to Purchaser at the last address provided by Purchaser to API. Purchaser assumes all risk of loss from the time the Products are so delivered. Purchaser authorizes API to exercise its discretion in selecting the method of shipment unless a particular method is specified by Purchaser. Shipping dates, if any, are approximate and are based on the prompt receipt by API of all necessary information from Purchaser.
5. SOFTWARE. Computer software, if any, is transferred by API to Buyer pursuant to the software manufacturer’s license, the terms and conditions of which are set forth on or in the container in which such software is or was packaged.
6. ACCEPTANCE OF PRODUCTS AND PRODUCT RETURNS. Buyer shall promptly inspect the Product upon receipt. Buyer is deemed to have accepted the Product unless written notice of rejection is received by API within fifteen (15) days after delivery of the Product. Buyer waives any right to revoke acceptance thereafter. Buyer shall report any discrepancy in shipment quantity or damage within fifteen (15) days after delivery. No return of Products shall be accepted by API without a Return Material Authorization ("RMA") Number which may be issued by API in its sole discretion. Any Products (or portions or components thereof) to be returned to API hereunder shall be returned by Purchaser within ten (10) days after issuance of the RMA number. In the event Purchase fails to timely return the Products, the RMA shall expire, and Purchaser shall be deemed to have revoked any rejection and accepted the Products. Returned Product, or any portion or component thereof, must be in original manufacturer’s shipping cartons, properly packaged, complete with all packing materials. As an accommodation to Buyer, API may, in its sole discretion, accept non-defective Products subject to a mutually agreed upon restocking charge. All Products for return shall be returned freight prepaid in the manner specified by API at the time of providing the RMA number. If returned Products are claimed to be defective, the complete description of the nature of the defect must be included with the returned products. Products not eligible for return shall be returned to Buyer, freight collect, or, in API's sole discretion, held for and at the expense and risk of Buyer pending further instruction from Buyer.
7. LIMITED WARRANTY. THE LIMITED WARRANTY SET FORTH IN THIS SECTION IS IN LIEU OF, AND EXCLUDES, AND PURCHASER HEREBY WAIVES, ANY AND ALL OTHER REPRESENTATIONS, GUARANTEES AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Subject to the limitations and exclusions set forth below and in paragraph 15, for a period of one year from date of delivery and under normal use and maintenance API warrants the Products will conform to such plans and specifications as have been agreed upon and will be free from defects in materials and workmanship. API hereby disclaims all other express or implied warranties concerning the condition or quality of the goods, including specifically the warranties of merchantability and fitness for purpose.
In no event shall API's responsibilities, and Purchaser's remedies, extend beyond the repair or replacement of the Products (or defective or failed portion or component thereof), or, in API's sole discretion, the credit of the purchase price for the Products. Notwithstanding the foregoing, API will have no liability under this warranty unless; (i) API is promptly notified in writing upon the failure or discovery of defects by Purchaser; (ii) the defective or failed Products (or portion or component thereof) is returned to API, transportation charges prepaid by Purchaser; (iii) the defective or failed Products (or portion or component thereof) is received by API for adjustment no later than one year following the date on which such Products were delivered to Purchaser; and (iv) API's determines, after examination of the returned defective or failed Products (or portion or component thereof), that any failure or defects have not been caused by misuse, abuse, neglect, improper installation, repair, virus infestation, software conflict, hardware incompatibility, alteration, accident, improper storage or other action or inaction beyond reasonable practice for such Products. API's rendering of technical advice or service in connection with Purchaser's order for the Products furnished hereunder shall not enlarge this limited warranty or affect the limitations set forth above. No person, firm or corporation is authorized to assume for API any expanded liability in connection with this Contract.
8. INTELLECTUAL PROPERTY RIGHTS. Purchaser shall indemnify, defend and hold API harmless against any expenses, damages, costs or losses, including attorneys' fees, resulting from any suit or proceeding brought for infringement of any intellectual property rights ("IPR"), including but not limited to, patents, mask work rights, trademarks, copyrights, trade secrets or trade name, or for unfair competition, arising from API's compliance with Purchaser's designs, specifications or instructions.
Neither the acceptance of any order, nor the sale of Products or any parts thereof hereunder confers on the Purchaser a license under any IPR or proprietary information of API or any other entity covering or relating to (i) the Products, or (ii) the structure of any devices to which the Products or parts may be applied, or (iii) a process or machine in connection with which they may be used.
9. CONTINGENCIES. API shall not be liable for any failure to perform, or delay in performance, caused by circumstances beyond its reasonable control which make such performance commercially impracticable, including, but not limited to, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restrictions, labor disputes, labor shortages, embargoes, or failure or delays in transportation, inability to secure raw materials, components or machinery, acts of God, acts of any national, state, provincial or local government authority, whether or not valid, and judicial action, whether or not valid. In the event of API's inability due to circumstances beyond its reasonable control to supply the total demand for the Products, API may, in its sole discretion allocate its available supply among any and all of its Purchasers as API deems fair and practical without liability to Purchaser for any failure of performance which may result therefrom.
10. STATEMENTS AND ADVICE. If statements or advice, technical or otherwise, are offered or given to Buyer, such statements or advice shall be deemed to be given as an accommodation to Buyer and without charge and API shall have no responsibility or liability for the content or use of such statements or advice.
11. NONWAIVER OF DEFAULT. No act, or failure to act, of API subsequent to Purchaser's default under the terms of this order shall be construed, interpreted, implied, or assumed to be a waiver of such default. API may, in its sole discretion, elect to continue shipments or stop shipments, treat the order as terminated in whole or part, or accelerate delivery of the balance of Products under the order. No claim or right arising out of a breach of this Agreement by Purchaser can be discharged in whole or in part unless by a specific writing signed by a duly authorized representative of API.
12. ASSIGNMENTS. This Contract shall be binding upon and inure to the benefit of the parties and their successors and assigns, and may not be assigned by Purchaser, voluntarily or involuntarily, without the prior written consent of API.
13. TITLE TO PRODUCTS. Title and right of possession of the products sold hereunder shall remain with API and such Products shall remain personal property until all payments provided hereunder shall have been made in full. Purchaser agrees to do all acts necessary to protect and maintain such interim right and title in API. Failure of the Purchaser to pay the purchase price for any Products when due shall give API the right, without liability, to repossess such Products, with or without legal notice, and avail itself of any legal remedy.
14. EXPORT/REEXPORT. Purchaser will not in any form export, reexport, resell, ship or divert or cause to be exported, reexported, resold, shipped or diverted, directly or indirectly, any Products or technical data or software furnished hereunder or the direct product of such technical date or software to any country for which the applicable laws or regulations of any national government controlling such product or technical data or software require an export license or other governmental approval, without first obtaining such license or approval.
15. LIMITATION OF LIABILITY AND REMEDIES.
In no event, including negligence, shall API be liable to Purchaser for any special, incidental or consequential damages, including, but not limited to loss of profits or loss of use, for any matter relating to this Contract or the Products, whether based upon a claim for breach of contract, breach of warranty, negligence, or otherwise. Under no circumstances shall API's total liability in connection with this Contract and the Products exceed the purchase price of the Products.
In addition to any other rights and remedies API may have, in the event of any actual or anticipatory breach by Purchaser, API shall be entitled: (a) to interest on the full amount of the purchase price, fees and charges to be paid to API under the Contract (less any expenses which Purchaser proves API actually saved as a result of the breach or repudiation), from the date of the earlier of the invoice date or the date of breach or anticipatory breach or repudiation by Purchaser, until paid or otherwise recovered; (b) to any actual storage charges incurred by API in holding Products for the benefit of Purchaser and reasonable storage charges for any period during which API held the Products (or any portion thereof) for Purchaser's benefit at its facility; (c) to resell, but shall be under no duty to attempt to resell, any undelivered Products (or finished or unfinished portions or components thereof); and (d) to the full purchase price, fees and charges due API under the Contract, plus any incidental damages allowed by law and this Contract, less (i) any costs and expenses which Purchaser proves API actually saved as a result of Purchaser's breach or repudiation, and (ii) any amounts actually recovered by API upon the resale of undelivered Products (or finished or unfinished portions or components thereof). If and to the extent any undelivered Products (or finished or unfinished portions or components thereof) are not resold, API shall hold or store them for the benefit and at the sole risk, cost and expense of Purchaser.
In the event collection of amounts due under this Contract is referred to a collection agency, Purchaser shall pay any and all costs, fees and charges incurred or to be incurred by API in collecting amounts due. In the event collection of amounts due API under this Contract is referred to an attorney for collection, the prevailing party shall be entitled to attorneys' fees and costs of collection, including such fees and costs incurred prior to the filing of any action or complaint.
16. SEVERABILITY. If at any time any one or more of the provisions of these terms and conditions becomes or is held by a court to be invalid, illegal or unenforceable in any respect, the validity and enforceability of the remaining provisions of these terms and conditions shall not in any way be affected or impaired thereby.
17. GENERAL. This Contract shall be governed by, and construed in accordance with, the laws of the State of California, without giving effect to any principles of conflicts of law. This Contract constitutes the entire agreement between Purchaser and API with respect to the purchase and sale of the Products, and no representation or statement not contained herein shall be binding upon API as a warranty or otherwise. No addition to or modification of any of the foregoing terms and conditions shall be binding upon API unless made in writing and signed by a duly authorized representative of API.