ECOM America, Ltd.
Standard Terms and Conditions of Sale
These Standard Terms and Conditions of Sale shall apply to all quotations and offers made, and purchase orders accepted, by ECOM America, Ltd., a Georgia Corporation, and its affiliates. THESE STANDARD TERMS AND CONDITIONS OF SALE MAY, IN SOME INSTANCES, CONFLICT WITH THE TERMS AND CONDITIONS AFFIXED TO PURCHASE ORDERS OR OTHER PROCUREMENT DOCUMENTS ISSUED BY BUYER. IN SUCH CASE, THE TERMS AND CONDITIONS CONTAINED HEREIN SHALL PREVAIL. ECOM America’s acceptance of any purchase order of Buyer is strictly conditioned upon Buyer’s acceptance of these Standard Terms and Conditions of Sale. Buyer shall be conclusively deemed to have accepted the same upon any of the following by Buyer, its agents or representatives: (i) written or electronic acknowledgement or acceptance hereof, (ii) transmission to ECOM America, its agents or representatives of any order for ECOM America’s Products or services, or (iii) acceptance of or payment for any product or service covered hereby. ECOM America’s failure to object to any provision contained in any communication from Buyer shall not be deemed a waiver of any provision hereof. Any changes in the terms and conditions of sale contained herein, or in any document or agreement referred to herein, must be specifically agreed to in a writing signed by a corporate officer of ECOM America, before being binding on either party. No order will be binding upon ECOM America unless and until accepted in writing on ECOM America’s behalf by an authorized official of ECOM America at its corporate office in Gainesville, Georgia, U.S.A. ECOM America may accept or reject any order at ECOM America’s sole discretion.
Prices quoted are subject to modification or withdrawal without notice, unless otherwise stated in a written quotation provided by ECOM America. All invoices and charges for products and services will be at the price indicated in ECOM America’s written order acknowledgement, or other mutually agreeable form of order acceptance by ECOM America. In the event that the acceptance price differs from the price originally quoted to Buyer, Buyer may cancel such order without liability so long as it gives written notice thereof to ECOM America within five (5) days following the date of ECOM America’s order acceptance notice. Unless otherwise specified or required by law, all prices are exclusive of any sales, use, revenue or excise tax, import duty (including brokerage fees) or other tax (excepting only taxes based on Seller’s income), fees or other charges of any nature imposed by any public authority (national, state, local or other) applicable to the products and services described in the contract of sale. Such taxes, when applicable, shall be added to the purchase price and be paid by Buyer, unless Buyer delivers to ECOM America with the purchase order a proper tax exemption certificate acceptable to ECOM America and the applicable taxing authority.
3. TERMS OF PAYMENT
The terms of payment are net thirty (30) days from the invoice date, subject to the approval of ECOM America’s credit department at the time of shipment. ECOM America reserves the right to require payment in advance, C.O.D. or guarantee by letter of credit, and otherwise modify credit terms at its discretion based upon the financial condition of Buyer.
4. TITLE AND DELIVERY
Unless otherwise agreed to by ECOM America in an advance writing, all sales are made Ex-Works ECOM America’s shipping facility in Gainesville, Georgia, U.S.A. or other shipping point designated by ECOM America. In other words, title shall pass to Buyer, and ECOM America’s liability shall cease, when ECOM America places the Products covered hereby at the disposal of Buyer (or Buyer’s selected carrier as Buyer’s agent) at ECOM America’s facility in Gainesville, Georgia, U.S.A., or other shipping point designated by ECOM America. All claims for loss or damages must be filed with the carrier. In the absence of timely and specific shipping instructions from Buyer, or the failure of Buyer’s selected carrier to accept Products on the acknowledged shipment date, ECOM America may select another carrier and service level similar to that of Buyer’s selected carrier (if any), so as to complete the order as originally acknowledged by ECOM America. In such cases, Buyer will promptly accept any and all ordered products as if placed at the disposal of Buyer or its selected carrier at ECOM America’s facility. Claims against ECOM America for shortages must be made within ten (10) days after arrival of shipment. ECOM America assumes no responsibility for delay, breakage or damage after having placed Products in good order at the disposal of Buyer or its carrier at ECOM America’s facility.
5. ACCEPTANCE BY BUYER
Buyer shall accept or reject products within thirty (30) days following receipt of each shipment. In the event that Buyer fails to notify ECOM America in writing of rejection and the specific grounds therefore within such time period, Buyer shall be conclusively deemed to have accepted such products without qualification.
Subject to the terms of Paragraph 14, ECOM America warrants that the Products covered hereby shall be free from defects in workmanship and materials, and shall conform to ECOM America’s specifications as published at the time of order acceptance, or other specifications accepted in writing by ECOM America. ECOM America’s sole obligation to Buyer for Products failing to meet the aforesaid warranty shall be, at ECOM America’s option, to (a) replace the nonconforming Products, or (b) issue Buyer a credit for the purchase price of the nonconforming Products, where (i) ECOM America has timely received written notice in reasonable detail of any nonconformity; (ii) after ECOM America ’s written authorization to do so, Buyer has returned the nonconforming Products to ECOM America, freight prepaid, accompanied by ECOM America’s, correctly completed, standard return material authorization (“RMA”) form; and (iii) ECOM America has determined to its satisfaction that the Products are nonconforming and that such nonconformity is not subject to the foregoing warranty exclusion (concerning misuse, neglect and other causes). Each return shipment must be in proper and appropriate packaging with the RMA number clearly stated on the outside of the container. Unauthorized returns, or returns that fail to comply with the foregoing requirements, will be subject to reshipment to Buyer at its sole cost and expense and all risk of loss for unauthorized returns shall be borne by the Buyer.
THE FOREGOING WARRANTY AND REMEDIES ARE EXCLUSIVE AND ARE MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, STATUTORY OR BY OPERATION OF LAW OR OTHERWISE, INCLUDING (WITHOUT LIMITATION) WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE. ECOM AMERICA NEITHER ASSUMES, NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT, ANY OTHER LIABILITY IN CONNECTION WITH THE SALE, INSTALLATION OR USE OF ITS PRODUCTS, AND ECOM AMERICA MAKES NO WARRANTY WHATSOEVER FOR PRODUCTS NOT MANUFACTURED BY ECOM AMERICA NOR FOR ANY ECOM AMERICA TECHNOLOGY PRODUCT PURCHASED OR ACQUIRED FROM ANY DISTRIBUTOR, BROKER OR OTHER SOURCE WHICH HAS NOT BEEN AUTHORIZED BY ECOM AMERICA TECHNOLOGY TO SELL OR DISTRIBUTE ITS PRODUCTS.
7. LIMITATION OF LIABILITY
ECOM AMERICA SHALL NOT BE LIABLE FOR DAMAGES DUE TO DELAYS IN DELIVERY OR USE. IN NO EVENT SHALL ECOM AMERICA BE LIABLE FOR SPECIAL, CONSEQUENTIAL OR INCIDENTAL COSTS OR DAMAGES OF ANY KIND, HOWEVER CAUSED, WHETHER ARISING FROM CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, INCLUDING (WITHOUT LIMITATION) DAMAGES TO PERSONS OR PROPERTY, LOSS OF PROFITS, GOODWILL, OVERHEAD COSTS OR PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF PROFITS, OR ANY OTHER LIKE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, ECOM AMERICA’S AGGREGATE LIABILITY TO BUYER AND THIRD PARTIES SHALL NOT EXCEED THE REFUNDING OF THE PURCHASE PRICE OF PRODUCTS HEREUNDER.
8. PATENT INFRINGEMENT
ECOM America shall defend any valid suit, proceeding, or claim of infringement asserted against Buyer alleging that any ECOM America Product supplied by ECOM America to Buyer infringes a third party’s intellectual property rights, excluding claims directed to manufacturing equipment, processes or foundry services utilized or purchased by ECOM America. Buyer must promptly inform ECOM America of any such claim, and provide ECOM America with each communication, notice or other action relating to the alleged infringement and give full authority, information, and assistance (at ECOM America’s expense) necessary to defend or settle such suit or proceeding. ECOM America shall have the absolute right to control the defense and settlement of any infringement suit or proceeding for which Buyer seeks indemnification under this paragraph.
If any ECOM America Products purchased by Buyer shall be held to infringe any third party’s intellectual property right(s) subject to any of the exclusions stated herein and Buyer is judicially ordered not to purchase or use such Products, ECOM America will at its sole option and at its expense (1) procure for Buyer the right to purchase and use such Products free of any liability for infringement or (2) modify such Products to become non-infringing or (3) replace such Products with non-infringing Products or (4) cancel such Products on backlog with ECOM America or (5) refund the purchase price of such Products after Buyer successfully completes an RMA. ECOM America’s sole obligation will be the options specified in this section. If ECOM America, after reasonable attempts, determines that it is impractical or uneconomical to secure the right to continued use of the infringing product, ECOM America will be relieved of all obligations and liabilities to secure its continued use. If the infringement by Buyer is alleged prior to ECOM America’s completion of delivery of the Products, ECOM America may decline to make further shipments without being in breach of this Agreement.
ECOM America shall not be obligated to defend or be liable for costs and damages if the infringement arises out of (1) Products that are manufactured by ECOM America in accordance with Buyer’s specifications, or (2) Buyer’s use or application of Products in combination with other products not supplied by ECOM America, or (3) the Products being modified by Buyer or (4) from use of the Products, or any part thereof, in the practice of a process. ECOM America’s obligations hereunder shall not apply to any infringement occurring after Buyer has received notice of such suit or proceeding alleging the infringement unless ECOM America has given written permission for such use by Buyer.
Sales of Products, or any part thereof, hereunder confers upon Buyer no license under, or grant of any right to acquire, any patent or any other intellectual property rights owned or controlled by ECOM America whatsoever. Unless expressly provided otherwise in writing, ECOM America shall retain exclusive title to and possession of any tools, software, algorithms, mask works, models, simulations, circuit designs, dies, fabrication processes, test methods and fixtures invented, made for, used or obtained by ECOM America in connection with any purchase order.
9. CONTINGENCIES; DELAY; FORCE MAJEURE
All shipment dates and quantities are approximate. ECOM America will use commercially reasonable efforts to fill all orders according to the agreed upon schedule and quantity. ECOM America reserves the right to make products available in installments and the contract of sale shall be severable as to each such installment. Delay in delivery or other default of any installment of any one or more Products shall not relieve Buyer of its obligation to accept and pay for remaining deliveries.
ECOM America shall not be responsible for any failure to perform due to acts of God, war, riot, acts of terrorism, embargoes, acts of civil or military authorities, fire, flood, earthquake, accident, strike, shortages of transportation facilities, fuel, labor or materials, or for any other cause beyond ECOM America’s reasonable control. In the event of any delay caused by any such contingency, the date of shipment shall, at the discretion of ECOM America, be deferred on a day-by-day basis until such event has terminated. In the event ECOM America’s production is curtailed for any of the foregoing reasons so that ECOM America cannot make available the full amount released hereunder, ECOM America may allocate production deliveries to the various customers then under contract for similar goods. The allocation will be made in a commercially fair and reasonable manner. When allocation has been made, ECOM America will notify Buyer of the estimated quantity to be made available to Buyer and the approximate time when this quantity will be made available.
10. CANCELLATION OR RESCHEDULING BY BUYER FOR CONVENIENCE
Buyer may cancel or reschedule any order for convenience under the following terms and conditions: (a) for standard products, the minimum advance written notice to ECOM America for any cancellation or rescheduling is thirty (30) calendar days prior to the current acknowledged shipment date, and such notice will be effective only upon the specific written approval of ECOM America’s customer service department and may be subject to special charges; (b) for standard products with additional special handling, marking or other processing, ECOM America shall state the minimum advance written notice period for cancellation or rescheduling with its price quote to Buyer for such Products, or at any other time prior to ECOM America’s acceptance of an Order for such Products, which period in no event shall be less than thirty (30) calendar days prior to the current acknowledged shipment date; and (c) for non-standard, custom or special Products, Buyer shall accept delivery of, and promptly make full payment to ECOM America for all such Products for which ECOM America has outstanding purchase orders from Buyer at the time of cancellation. No purchase order accepted or acknowledged by ECOM America shall be subject to partial payment or set off by Buyer. No cancellation or rescheduling of any non-standard, custom or special Product is allowed without the advance written consent of ECOM America specifically as to each such Product, and cancellation charges shall apply. Standard Products also may be subject to cancellation charges (as per non-standard, custom and special products), as determined by ECOM America in its sole discretion. In such events, Buyer shall promptly pay a cancellation fee to ECOM America, which fee may include, but is not limited to: (i) costs of settling and paying claims arising out of the termination of work of ECOM America’s subcontractors and/or vendors; and (ii) other reasonable costs of ECOM America, including (without limitation) manufacturing, engineering, development, accounting, legal and clerical costs.
11. CANCELLATION BY BUYER FOR DEFAULT
Buyer may cancel any order for standard Products, in whole or in part, upon written notice to ECOM America in the event that ECOM America fails to make such Products available in accordance with the terms hereof, except as such failure is excused or deferred pursuant to Paragraph 10. Cancellation by Buyer for default shall be effective only upon ECOM America’s failure to correct such default within a reasonable period following written notice by Buyer specifying such default. Non-standard or custom Products, or any Products with special handling, testing or other processing are not subject to cancellation without the advance written consent of ECOM America, which consent shall not be unreasonably withheld, unless ECOM America’s failure to so make such products available, or to so correct such default within a reasonable period following written notice thereof, is excused or deferred pursuant to Paragraph 10. ECOM America shall not be liable for incidental, punitive or consequential damages, including but not limited to the cost of labor, purchase of substitute goods, requalification, delay, loss of profits, loss of opportunities or goodwill, if ECOM America fails to meet ECOM America’s acknowledged delivery dates.
12. CANCELLATION BY ECOM AMERICA FOR INSOLVENCY
ECOM America reserves the right to cancel any unfilled order immediately and without notice to Buyer in the event that Buyer becomes insolvent, is adjudicated bankrupt, petitions for or consents to any relief under any bankruptcy reorganization statutes, or in the judgment of ECOM America is unable to timely meet its financial obligations in the normal course of business.
13. SUBSTITUTIONS AND MODIFICATIONS
ECOM America reserves the right to modify the specifications of any component or Product offered by ECOM America, provided that, in ECOM America’s opinion, the modification will not materially affect the form, fit or performance of such component or Product.
14. CONTROLLING LAW; VENUE & JURISDICTION; ATTORNEYS’ FEES
These Standard Terms and Conditions of Sale shall be governed by and construed under the laws of the State of Georgia, U.S.A., without regard to the principles of conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. In the event any applicable contract or agreement is executed in more than one language version, the English language version shall control. Any and all disputes arising hereunder or with respect hereto shall be subject to the exclusive jurisdiction and venue of the state and federal courts in the State of Delaware, U.S.A., and Buyer consents to the personal and exclusive jurisdiction and venue of these courts. The prevailing party in any legal action brought by one party against the other shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses incurred thereby, including court costs and reasonable attorneys’ fees.