Peerless Standard Terms
Peerless Electronics Inc.’s (“Company”) acceptance of your company’s (“Purchaser”) order for the goods sold hereunder (“Goods”) is subject to the terms and conditions set forth below (the “Terms”).
1. Limitation and Disclaimer of Warranties and Liabilities. (a) Subject to the provisions and qualifications hereof, Goods furnished by Company but not manufactured by Company will carry the warranty of the manufacturer of such Goods, if any. It is hereby acknowledged and agreed that there are many variables affecting the proper selection, use and installation of Goods since each potential system utilizing these Goods is unique with differing component configurations and attributes and differing requirements and environments. It is further acknowledged and agreed that Company has not been specifically engaged to provide any advisory, design, engineering, consulting or other services to assist in any such determinations or the determination of the adequacy of the system and/or backup systems in which the Goods are to be utilized and Company is not familiar with the specific variables of such systems nor has Company given any advice or made any representations or warranties, express or implied, in connection therewith that Purchaser has relied on. Accordingly, in the event Company provides any suggestions, diagrams or drawings to Purchaser, it is acknowledged and agreed that such suggestions, diagrams or drawings are general theoretical guidelines only, are not intended to constitute advice or recommendations on the assembly of the Goods or the use of the Goods in a system, and should not be relied upon by Purchaser for any reason. Accordingly, notwithstanding any information provided by Company, Purchaser is responsible for consulting with its own engineers and other appropriate professionals who are familiar with the specific systems into which Goods are to be incorporated so that the proper selection, use and installation of such Goods, and the adequacy of the system and back-up systems, can be determined. As a result, Purchaser shall be barred from any recovery against Company (including, without limitation, any recovery under the manufacturer’s warranty, if any, referenced in this section 1(a)) by reason of improper selection, use and/or installation of the Goods and, with respect to the systems in which such Goods are to be utilized, improper system design and/or the inadequacy of back-up systems, and Company shall have no liability on account thereof, and same is hereby waived.
(b) It is hereby expressly understood and agreed that unless a statement is specifically identified in these Terms or on Company’s website or on an Order (as defined in section 2(d)) as a warranty, the statements made herein and therein relating to the Goods are not express warranties and do not form a part of the basis of the bargain but are merely Company’s opinion or commendation of the Goods. Any description of the goods specified in these Terms and any description of goods contained in Company’s website, an Order or any and all brochures, pamphlets or other literature of Company, whether delivered before or after the date hereof, are not intended to be warranties. Instead, they are for the sole purpose of identifying such goods; and such descriptions are not part of the basis of the bargain, and do not constitute a warranty that the Goods shall conform to those descriptions. In addition, Company is not responsible for any errors, omissions, or inaccuracies on its website, or contained in any and all brochures, pamphlets or other literature of Company or its suppliers. The use of any graph, data curve, model, drawing, or mean time to failure analysis is for illustrative purposes only, conformity of the Goods to such graph, data curve, model, drawing, or mean time to failure analysis is not part of the basis of the bargain, and is not a warranty that the Goods will conform with the graph, data curve, model, drawing, or mean time to failure analysis. No affirmation of fact or promise made by or on behalf of Company, whether or not in these Terms, shall constitute a warranty that the Goods will conform to the affirmation or promise.
(c) Goods sold pursuant hereto are not authorized for use as critical components in (i) devices, implements or systems utilized in air or space flight; (ii) medical devices, implements or systems; or (iii) life support devices, implements or systems (collectively, “Space and Medical Systems”). The manufacturer’s warranty, if any, referenced in section 1(a) does not apply to a Goods used in Space and Medical Systems and Company will have no responsibility or liability in connection therewith and same are hereby waived. As used herein, “life support devices, implements or systems” are those which (i) are intended for surgical implant into the body; or (ii) support or sustain life. A “critical component” is any component of a device, implement or system whose failure to perform does or can reasonably be expected to result in injury to person or property or cause a failure in that device, implement or system or affect its safety or effectiveness.
(d) Further, Purchaser shall also be barred from any recovery (including, without limitation, any recovery under the manufacturer’s warranty, if any, referenced in section 1(a)) on account of the following, and Company shall have no liability on account of any of the following: (i) any Goods which have been subject to accident, negligence, alteration, abuse, tampering, misuse, improper storage (including, without limitation, exposure to weather), improper maintenance, improper removal, improper installation or the like; (ii) any Goods which are not used with compatible components or in appropriate environments; (iii) any Goods which are used outside of stated absolute maximum ratings, or applicable service, pressure, temperature, frequency or other ranges or applications for which they were manufactured, as specified by Company or the applicable manufacturer of the Goods; (iv) use of any Goods for any Space and Medical Systems; (v) unreasonable use, improper operation of Goods, use of Goods beyond normal fashion, failure to follow instructions, failure to maintain Goods in good condition and repair, or the like; and (vi) failures of or defects in any Goods caused by another component or other element or influence within or outside of a given system including, without limitation, failures caused by voltage or current settings.
(e) In the event a defect is discovered or should have been discovered from which it is reasonable to conclude that damage, either personal, property or economic, may result, the continued use of the suspect Goods will constitute an assumption of the risk and a bar to any recovery against Company, including, without limitation, any recovery for breach of any express warranty.
(f) Purchaser’s SOLE AND EXCLUSIVE RIGHTS AND REMEDIES IN CONNECTION WITH THE MANUFACTURER’S WARRANTY, IF ANY, REFERENCED IN SECTION 1(a) ARE ALSO LIMITED TO THE RIGHTS AND REMEDIES EXPRESSLY SET FORTH IN SECTION 2.
(h) IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION OF THE MANUFACUTER’S WARRANTY, IF ANY, REFERENCED IN SECTION 1(a). Company MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO ANY Good NOT MANUFACTURED BY Company. IN ADDITION, Company makes no warranties or guarantees of any kind whatsoever, whether express or implied, with respect to any assembly work OR OTHER SERVICES performed by Company, IT BEING UNDERSTOOD THAT SUCH ASSEMBLY WORK OR ORTHER SERVICES IS PERFORMED SOLELY AS AN ACCOMODATION TO Purchaser. THE MANUFACTURER’S WARRANTY REFERENCED IN SECTION 1(a) AND THE OBLIGATIONS AND LIABILITIES OF Company THEREUNDER ARE EXCLUSIVE AND ARE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES CONCERNING INFRINGEMENT OR THE LIKE, AND ANY WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING AND USAGE OF TRADE.
(i) Purchaser acknowledges that Company has acted in good faith in making the manufacturer’s warranty, if any, referenced in section 1(a) available to Purchaser. Purchaser further acknowledges that such warranty is intended to be the only warranty with respect to the Goods. In the event of a conflict of warranties, the rules of section 2-317 of the New York Uniform Commercial Code (“UCC”) shall be applied to determine the dominant warranty, and Company shall be excused from performance on the conflicting non-dominant warranty.
2. LIMITATION OF REMEDIES, WAIVER OF CONSEQUENTIAL DAMAGES. (a) EXCEPT AS OTHERWISE EXPRESSLY STATED IN SECTIONS 2(b) AND 5, Company’s SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY WITH RESPECT TO (i) ANY BREACH OF WARRANTY, EXPRESS OR IMPLIED (UNDER THESE Terms OR OTHERWISE) MADE BY Company, (ii) NON-CONFORMITIES OF THE Goods OR THE TENDER THEREOF, AND/OR (iii) OTHER BREACHES OF ANY OBLIGATION OR DUTY OWED BY Company HEREUNDER OR UNDER APPLICABLE LAW, AND Purchaser’s SOLE AND EXCLUSIVE RIGHTS AND REMEDIES WITH RESPECT THERETO, SHALL BE LIMITED TO REASONABLE EFFORTS BY Company IN CONTACTING THE MANUFACTURER AND ACTING AS A LIAISON BETWEEN Purchaser AND THE MANUFACTURER IN Purchaser’s EFFORTS TO OBTAIN THE BENEFITS OF THE MANUFACTURER’S WARRANTY, IF ANY. Company HAS NO OBLIGATION TO COMMENCE OR OTHERWISE ASSIST IN ANY ACTION OR PROCEEDING BY Purchaser TO OBTAIN SUCH BENEFITS. SUBJECT TO THE FOREGOING, Company WILL ACT AS A LIAISON BETWEEN Purchaser AND THE MANUFACTURER, FREE OF CHARGE.
(b) IF AFTER A REASONABLE NUMBER OF ATTEMPTS BY Company TO REMEDY A DEFECT PURSUANT TO SECTION 2(a) AND THE REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNCONSCIONABLE OR UNENFORCEABLE IN THE JURISDICTION IN WHICH ENFORCEMENT IS SOUGHT, OR IN THE EVENT SAID REMEDY IS NOT APPROPRIATE OR PRACTICAL AS DETERMINED BY Company IN ITS SOLE AND ABSOLUTE DISCRETION, Company SHALL, AT ITS OPTION, EITHER (i) REPAIR OR REPLACE SUCH DEFECTIVE Goods, AS THE CASE MAY BE, FREE OF CHARGE, OR (ii) PROVIDE Purchaser WITH A REFUND OR CREDIT OF THE PURCHASE PRICE FOR SUCH DEFECTIVE Goods. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE REMEDIES STATED IN THIS SECTION 2(b) SHALL THEN BE Purchaser’s SOLE AND EXCLUSIVE REMEDY.
In the event Purchaser requests a Good sold by Company as a replacement to a part which has been manufactured or distributed by another entity, Company will endeavor to find a potential replacement Good. However, in such event, Company does not warrant or represent the suitability of the replacement Good, it being understood and acknowledged that the replacement Good may not possess the same or similar form, fit and function and performance characteristics of the original part. Accordingly, Purchaser should consult with its own engineers and other appropriate professionals with respect to the selection of such replacement Good.
Purchaser’s RIGHTS AND REMEDIES PROVIDED IN SECTIONS 2(a) AND 2(b), AND IF APPLICABLE, SECTION 5 FOR THE MATTERS STATED THEREIN, SHALL BE Purchaser’s SOLE AND EXCLUSIVE RIGHTS AND REMEDIES HEREUNDER AND ARE EXPRESSLY MADE IN SUBSTITUTION OF ANY AND ALL RIGHTS AND REMEDIES OTHERWISE PROVIDED UNDER APPLICABLE LAW.
(c) In addition to Company’s rights under section 2-508 of the UCC, Company shall have the right to cure all non-conformities of Goods and the tender thereof without regard to whether Company had reasonable grounds for believing that the tender or non-conformities would be acceptable. Company shall have such right to cure even if Company’s time to do so pursuant hereto extends beyond the initial time for performance hereunder. The parties acknowledge and agree that, to the extent the Order Confirmation (as defined in section 2(d)) refers to more than one delivery, such Order Confirmation is, and shall be deemed to be, an installment contract within the meaning of section 2-612 of the UCC and the parties rights and obligations hereunder shall be construed in accordance therewith, even if it is determined that this is a unitary contract with several deliveries.
(d) THE MAXIMUM LIABILITY OF Company ARISING OUT OF OR RELATING TO THE SALE OF Goods EVIDENCED BY ANY Orders AND THE TRANSACTIONS CONTEMPLATED THEREBY AND BY THESE Terms SHALL BE LIMITED TO THE PURCHASE PRICE OF THE Goods SOLD HEREUNDER TO THE EXTENT ACTUALLY PAID FOR BY Purchaser AND RECEIVED BY Company. IN RESPECT THEREOF, Purchaser HEREBY ACKNOWLEDGES THAT SUCH LIMITATION OF LIABILITY IS NOT SUBJECT TO THE PROVISIONS OF UCC SECTIONS 2-718, 2-719(1)(b) OR 2-719(2), AND IF AND TO THE EXTENT SUCH SECTIONS MAY BE APPLICABLE, WAIVES APPLICATION OF SUCH. UNDER NO CIRCUMSTANCES SHALL Company BE LIABLE TO Purchaser OR ANY OTHER PERSON FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, COVER DAMAGES, OR LOST PROFITS, EXPENSES OR LOSSES DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO ANY (1) BREACH OF WARRANTY, EXPRESS OR IMPLIED, UNDER THESE Terms OR OTHERWISE; (2) DEFECTIVE Goods OR ANY NON-CONFORMITY IN THE TENDER THEREOF; OR (3) OTHER BREACH OF ANY OBLIGATION OR DUTY OWED BY Company UNDER ANY Order OR UNDER APPLICABLE LAW, REGARDLESS OF WHETHER THE LIABILITY RESULTED FROM ANY GENERAL OR PARTICULAR REQUIREMENT OR NEED WHICH Company KNEW OR SHOULD HAVE KNOWN OF, IT BEING EXPRESSLY UNDERSTOOD THAT Purchaser’s ONLY REMEDY SHALL BE IN THE MANNER AND ONLY TO THE EXTENT SPECIFIED IN SECTIONS 2(a), 2(b) OR 5. IN THE EVENT THAT ANY OTHER TERM CONTAINED IN THESE Terms OR AN Order IS FOUND UNCONSCIONABLE OR UNENFORCEABLE FOR ANY REASON, OR ANY EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE, THIS PROVISION OF WAIVER BY AGREEMENT OF CONSEQUENTIAL DAMAGES SHALL NEVERTHELESS CONTINUE IN FULL FORCE AND EFFECT.
For purposes of these Terms, the term “Order” means the Secure Order submitted by Purchaser during a particular Session that is specifically acknowledged by Company pursuant to an email confirmation sent by Company to Purchaser after Purchaser’s submission of the Secure Order (the “Order Confirmation”). The term “Secure Order” means Steps 1 through 6 in the secure checkout process on Company’s website completed by Purchaser and submitted to Company by clicking the applicable “Pay for Order” button on such website for the purchase of Goods. The Secure Checkout contains the Good model number, Good unit price, quantity to be ordered, total price, billing information, shipping information and credit card information. Any other terms specified by Purchaser that are different from, additional to, or conflict with these Terms are not applicable to the Secure Order, and shall be of no force or effect. The term “Session” means that certain time period commencing from the time Purchaser clicks onto an “Add To Cart” icon and ending when Purchaser clicks the “Pay for Order” button on Step 6 of the secure checkout process on Company’s website.
Accordingly, Purchaser acknowledges and agrees that a Secure Order is merely an offer to purchase Goods and is not binding on Company unless and until Company accepts such offer by issuing an Order Confirmation of the offer in question. Purchaser’s offer will be irrevocable for a period of five (5) business days (the “Offer Period”). If Company accepts an offer by issuing an Order Confirmation during the applicable Offer Period, a binding contract consisting of an Order will be created based on these Terms. If Company fails to issue an Order Confirmation for a particular offer during the applicable Offer Period, or if Company otherwise rejects an offer, no binding contract is created and the particular offer will be deemed to be rejected.
3. Delivery; risk of loss and related matters. (a) Shipping dates specified in an Order are approximate and are based upon prompt receipt of all necessary documentation and information. Goods shall be delivered (i) for sales having an ultimate destination within the United States, and its territories, “F.O.B. Company’s applicable plant”; or (ii) for sales having an ultimate destination outside the United States or its territories, “ex works Company’s applicable plant”, and in each instance Company is authorized to ship Goods by carrier. Unless otherwise indicated, the foregoing mercantile symbols shall have the meaning ascribed to them under the UCC for sales within the United States and its territories, and under the International Commercial Terms – 2000 for sales outside the United States and its territories. Notwithstanding anything to the contrary contained herein, Company reserves the right, under any circumstances, to delay deliveries indefinitely and to allocate production and deliveries of Goods among its various customers in Company’s sole discretion, or, if applicable, in accordance with the U.S. Defense Priorities and Allocations System Regulations (15 CFR Part 700), and Company shall have no liability therefor. Such allocation may or may not be on a pro-rata basis and may be such that no allocation is made to Purchaser.
(b) Unless otherwise specified by these Terms, delivery shall occur and risk of loss of the Goods shall pass to Purchaser upon delivery of Goods, at Company’s applicable plant, to a carrier or the truck of Company or Purchaser, as the case may be. Further, for purposes of these Terms, “shipment” shall also be deemed to occur upon such delivery, loading Goods onto trucks at Company’s plant and transportation. Transportation of such goods shall be at Purchaser’s sole risk and expense. In the event Purchaser breaches any provision hereof or otherwise repudiates its obligations hereunder, the risk of loss of identified Goods at Company’s plant shall immediately pass to Purchaser.
(c) The quantity of Goods shipped to Purchaser as reflected on Company’s packing slip shall control. Purchaser will have seven (7) days from the date of Purchaser’s receipt of Goods to present to Company any claims that the actual count of the quantity of Goods shipped to Purchaser does not match the quantity of such Goods designated on the Company’s applicable packing slip. All such claims shall be made in writing and submitted in accordance with section 18(g) of these Terms. Company may consider any such claim that is duly submitted by Purchaser in Company’s sole and absolute discretion. Company shall have the right to deliver the entire Order at one time or in portions from time to time within the time of delivery specified in sections 5 and 6. Any delivery or portion thereof not made in accordance with these Terms shall neither affect any fulfilled parts thereof nor entitle Purchaser to reject subsequent deliveries. Without Company’s prior written consent (which may be withheld for any reason), orders and releases for Goods may not be rescheduled or cancelled by Purchaser and the Goods are not returnable. Accordingly, Purchaser shall not have the right to accelerate, postpone, reschedule, cancel or otherwise modify the delivery dates and related shipment of Goods specified by Company in the Order or in Company’s applicable quote or purchase order acknowledgement, as applicable (other than as provided in section 5). If Purchaser attempts to do so, it will be deemed to have repudiated this contract.
(d) In the event Purchaser cancels orders or releases any of the Goods, Purchaser shall pay Company’s then applicable cancellation fee as specified by Company from time to time.
4. Price. Except as otherwise specified on the Order, the purchase price for the Goods shall be the list price for such goods as reflected on the Order, and if not so stated, then as otherwise reflected in Company’s price list at the time of shipment. In addition to the purchase price, Purchaser shall be responsible for and shall pay for any and all transportation costs, insurance expenses and all applicable federal, state and local sales, use, property, excise and other taxes, duties or governmental charges imposed on or with respect to the Goods, except taxes levied on Company’s net income. To the extent permissible, New York state sales tax will not be imposed on goods identified as samples on the face of the Order Confirmation. In the event of new taxes or increased rates which are applicable to the transactions contemplated hereby, the applicable Order shall be subsequently adjusted if necessary and Purchaser shall immediately pay any difference. Notwithstanding any prices specified on the face of the applicable Order or Order Confirmation, Company reserves the right to charge prices prevailing at the time of shipment for goods scheduled to be shipped on an Order more than six (6) months from the order entry date on Company’s records.
5. Delays. (a) Except as otherwise provided in sections 2(c) and 6, Purchaser is entitled to cancel only that portion of any order which is excessively delayed, it being understood that time is not of the essence. Upon such cancellation, Purchaser shall only be entitled to a credit of the purchase price paid to Company for the portion of the order which has been canceled by Purchaser as a result of such excessive delay. Such remedy shall be Purchaser’s sole and exclusive remedy with respect to late deliveries, and is expressly made in substitution of all other rights and remedies otherwise provided under applicable law. However, if this remedy is deemed to fail of its essential purpose, section 2(b) shall apply in the alternative. Purchaser acknowledges and agrees that Company shall not be liable or responsible for any resulting back-charges incurred by Purchaser on account of any such delays.
(b) To invoke such cancellation, Purchaser must give Company ten (10) days prior written notice thereof provided, however, that Company has not shipped the Goods in the interim.
6. Force Majeure. (a) Notwithstanding any provision herein to the contrary, Company shall not be liable or responsible for any delay in or failure of delivery of the Goods by reason of force majeure, including, but not limited to, Company’s inability to obtain raw materials or components from suppliers or to obtain same on a timely basis, or as a result of interruption of transportation, delays in delivery, governmental regulation, labor disputes, strikes, war, fire, flood, accidents, acts of God, civil disturbance, quota restrictions or any other cause beyond Company’s control, whether or not such cause be of the same class or kind as those enumerated above, such enumeration being expressly understood to be in addition to other causes or classes of causes beyond Company’s control. In the event of the occurrence of any such causes, Company shall have the right to allocate production and deliveries among its customers in such proportions as it deems appropriate, in its sole and absolute discretion.
(b) In the event Company is unable to make timely delivery of all or a portion of the Goods, by reason of any events or occurrences referred to in this section 6, Purchaser must accept delivery of the Goods whenever Company is able to make such delivery regardless of the duration of the delay in delivery of the Goods, or Company may, in its sole and absolute discretion, cancel the undelivered portion of the Order without liability.
7. Limitation of Action. No action or proceeding at law, in equity or otherwise shall be commenced by Purchaser against Company for Company’s alleged breach of warranty (express or implied) under these Terms or otherwise, failure to deliver conforming goods or other breach of any obligation or duty owed by Company (including without limitation by negligent acts or omissions) hereunder or under applicable law, unless: (i) Purchaser notifies Company in writing at the address specified in these Terms within thirty (30) days from the date of such alleged breach or failure to deliver conforming goods, provided Company does not remedy or correct the breach or non-conformity within sixty (60) days from the receipt of the notice; and (ii) such action or proceeding is commenced by Purchaser within twelve (12) months from the date the breach or non-conformity occurs for any action whether in contract, negligence or strict products liability, regardless of the Purchaser’s lack of knowledge.
8. Design Protection. (a) Purchaser has no right, title or interest in or to (i) the specifications and technical information furnished by Company or the proprietary information contained in any of the foregoing by reason of the sale of such Goods or otherwise; (ii) designs of Goods, and (iii) Company Process Technology (as defined below), and (iv) any and all related improvements of any of the foregoing (the foregoing items (i) – (iv) are collectively, the “Property”). Purchaser, as a special inducement to Company, agrees not to directly or indirectly copy or reproduce any Property, and further agrees that it will not disassemble, decompile or reverse engineer the Goods or otherwise misappropriate or utilize the Property. The Property shall be kept confidential by Purchaser and Purchaser shall not disclose same to any third party, nor shall same be used by Purchaser for any purpose other than to assist Company in supplying the Goods. All Property shall be and remain the exclusive property of Company and/or Company’s affiliates (as applicable) or the manufacturer of the Goods, as the case may be, and such property shall be delivered to Company at Company’s request. All improvements to Property and the Goods and the related Intellectual Property (as defined below) shall remain the exclusive property of Company irrespective of whether the improvements were suggested or made by or on behalf of Purchaser or any other Person. For purposes hereof, the term “Company Process Technology” means the Intellectual Property associated with the underlying materials, manufacturing, fabrication, assembly and testing of Goods. The term “Intellectual Property” means intellectual property and proprietary rights of any kind or nature including, without limitation, know-how, designs, technical drawings and documents, specifications, processes, developments, improvements, confidential or proprietary information, trade secrets, inventions, patents, trademarks and copyrights.
(b) Purchaser hereby acknowledges the validity of the Property including, without limitation, patents and patent applications presently pending. Purchaser hereby agrees that it will not directly or indirectly infringe the Property or contest or challenge the validity of the Property in any way.
9. Completion of Goods on Default. Upon the occurrence of an Event of Default, Company shall have the authority, at its option and without the obligation to do so, to complete the procurement of the Goods from the applicable manufacturer as well as an assembly work or services to be performed by Company. Company shall have the authority to resell such Goods in a commercially reasonable manner, and Purchaser shall be liable and responsible for any resulting losses and damages.
10. Default, Cancellation and Related Matters. (a) The occurrence of one or more of the following events shall constitute an “Event of Default”: (i) Purchaser’s breach or failure to perform any of its obligations hereunder or under any Orders; (ii) Purchaser’s breach or misrepresentation of any representation or warranty made by Purchaser hereunder or under any Order; (iii) Purchaser makes a general assignment for the benefit of creditors or admits in writing an inability to pay its debts as they mature or takes advantage of, or files under any federal or state insolvency statute or law, including, without limitation, the United States Bankruptcy Code, or consents to the institution of proceedings or the filing of any petition thereunder, or any proceeding is filed or commenced against Purchaser under any insolvency statute or law which is not stayed and dismissed promptly, or any substantial part of the properties of Purchaser are placed in the control of a receiver, custodian, trustee or similar official, or Purchaser consents to the appointment thereof; (iv) prohibition of Company by any cease and desist order, injunction, or other valid order, decree, process of law, or restraint from shipping, selling, exporting or distributing any Goods pursuant to the terms hereof; or (v) determination by Company, in its sole and absolute discretion, that the prospect of payment, or Purchaser’s financial condition, has been impaired or Purchaser may be insolvent within the meaning of section 1-201(23) of the UCC.
(b) Upon the occurrence of an Event of Default, Company shall have the sole and absolute right to cancel all or any portion of the Goods evidenced by the Order, it being understood that the occurrence of an Event of Default shall constitute a substantial impairment of value to Company of the sale of Goods evidenced by the Order. Company shall exercise such right by giving written notice of its intention to do so to Purchaser. Company shall not be liable to Purchaser on account of exercising such cancellation right.
11. Choice of Law and Forum. (a) The parties acknowledge and agree that these Terms, the Orders and the transactions contemplated hereby and thereby shall be a contract made in the United States, State of New York. All questions pertaining to the validity, construction, execution and performance of these Terms, the Orders and the transactions contemplated hereby and thereby shall be construed and governed in accordance with the domestic laws of the State of New York (including, without limitation, the UCC), without giving effect to principles of (i) comity of nations or (ii) conflicts of law, and these Terms, the Orders and the transactions contemplated hereby and thereby shall not be governed by the provisions of the U.N. Convention on Contracts for the International Sale of Goods.
(b) Any controversy or claim arising out of or relating to these Terms, the Orders or any of the transactions contemplated hereby and thereby, including without limitation, whether or not such dispute is a subject to arbitration, shall be settled by binding arbitration in accordance with the United States Arbitration Act and administered by the American Arbitration Association in accordance with its commercial arbitration rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.
(i) The arbitration proceedings shall be conducted before a panel of three (3) neutral arbitrators in the English language. The place of the arbitration shall be in New York, New York. Any award in an arbitration initiated under this Agreement shall be in accordance with New York law, as more particularly specified above. The successful party will be entitled to be awarded all costs, including reasonable attorney’s fees, paid or incurred by such prevailing party during the course of the arbitration proceedings.
(ii) In any arbitration initiated under these Terms, the Orders and the transactions contemplated hereby and thereby, the arbitrators will have no authority to award (i) injunctive or other equitable relief, or (ii) consequential, exemplary, incidental, indirect or special damages, lost profits or punitive or other damages not measured by the prevailing party’s actual direct damages, except for Purchaser’s breach of sections 8 and 18(e), or except as may be required by statute and then only to the extent such requirement cannot, as a matter of law, be waived. Any award shall include no injunction or direction to any party other than the direction to pay damages in accordance with the provisions hereof.
Except as required by law, neither party nor any arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written consent of Purchaser and Company.
If either party fails to proceed with arbitration as provided herein or unsuccessfully seeks to stay such arbitration, or fails to comply with any arbitration award, or is unsuccessful in vacating or modifying the award pursuant to a petition or application for judicial review, the other party shall be entitled to be awarded costs, including reasonable attorneys’ fees, paid or incurred by such other party in successfully compelling such arbitration or defending against the attempt to stay, vacate or modify such arbitration award and/or successfully defending or enforcing the award.
(c) To the extent that arbitration is unavailable by operation of law or otherwise, any action commenced in connection with these Terms shall be brought in a federal or state court located in the United States of America, State of New York, County of Nassau, and to the extent not otherwise subject to the jurisdiction of such courts, Purchaser agrees to waive any objection to such jurisdiction and to subject itself to the jurisdiction of such courts. Both Company and Purchaser further agree that service of process for any such action or proceeding shall be made by either an international courier service that regularly maintains records of its pick-ups and deliveries or by certified mail, return receipt requested, addressed to the parties at their respective addresses. In addition, a party may at its option, elect to use any other method of service of process authorized by applicable law.
12. Cumulative Remedies. All of Company’s rights and remedies hereunder shall be cumulative and not exclusive and shall be in addition to all other rights and remedies available under applicable law. Failure by Company to exercise any right, remedy or option hereunder or under applicable law, or delay in exercising same, will not operate as a waiver, it being understood that no waiver by Company will be effective unless it is in writing and signed by Company, and then only to the extent specifically stated.
13. Intellectual Property Infringements and Indemnity. Company makes no representations or warranties as to whether Goods are free from claims of third parties regarding infringement or the like, and same are hereby waived.
14. Government Contracts. (a) If Purchaser places any orders for Goods in connection with or under a U.S. Government contract or sub-contract, then, no Federal Acquisition Regulation (“FAR”) or Defense Federal Acquisition Regulations Supplement (“DFARS”) clauses shall be incorporated herein by reference, and same are hereby rejected and excluded, except Company agrees to adhere to mandatory FAR and DFARS clauses to the extent Company is required to do so under applicable laws. However, to the extent Purchaser is the United States Government or one of its agencies, then, to the extent of a conflict between these Terms and any applicable law, rule or regulation (collectively, “Law”) that cannot be waived, such Law shall control and these Terms shall be modified as provided in section 18(l).
(b) Purchaser acknowledges and confirms that DFARS clause 252.225-7009 (Restriction on Acquisition of Certain Articles Containing Specialty Metals) (the “Specialty Metals Clause”) is not applicable to the sale of Goods transactions evidenced hereby because the Goods which are the subject of these Terms meet the definition of electronic components (as defined under the Specialty Metals Clause) and therefore, qualify for the electronic components exception at DFARS 252.225-7009(c). If the Goods which are the subject of these Terms do not meet the definition of electronic components (as defined under the Specialty Metals Clause), Purchaser acknowledges and confirms that the Goods alternatively qualify for the commercially available off-the-shelf (COTS) items exception at DFARS 252.225-7009(c).
(c) If Purchaser is the U.S. federal government, or a contractor or subcontractor purchasing Goods under a U.S. federal government contract or sub-contract, Company provides the Goods, including the related Data and technology, as follows:
(i) Government technical data rights related to the Goods (including without limitation rights to Data) include only those rights expressly defined in these Terms, which are the rights customarily provided by Company to the public. This customary license is provided in accordance with FAR 12.211 (Technical Data) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items).
(ii) If a U.S. federal government agency has need for rights not conveyed under these Terms, such rights must be negotiated with Company to determine if there are acceptable terms for transferring such rights; and if agreement is reached for transferring such rights, a mutually acceptable written agreement specifically conveying such rights must be approved and signed by Company and the applicable U.S. federal government agency in order for such transfer to be effective.
15. Inspections. Purchaser does not have the right to perform any tests, source inspections, audits, surveillances, or other inspections (collectively, “Inspections”) at any of Company’s plants or the plants of Company’s affiliates, suppliers or subcontractors. The performance of any Inspections will be at Company’s sole discretion and only (i) pursuant to Company’s prior written instructions, (ii) in accordance with Company’s applicable policies, and (iii) provided that Purchaser, and any of its agents or representatives that would be performing such Inspection, execute Company’s standard non-disclosure agreement, and that any such Inspection does not interfere with the business or operations of Company.
16. WEEE Compliance. Purchaser acknowledges that it may be incorporating the Goods into Purchaser’s own products and reselling such products under Purchaser’s own brand, and may ultimately import such products into a member state of the European Union. In such event, Purchaser acknowledges that it is a Producer (as defined under WEEE) and hereby assumes any and all related obligations, duties, and responsibilities under WEEE with respect to such Goods, and Company will have no liability whatsoever on account thereof. For purposes hereof, the term “WEEE” means Directive 2012/19/EU of the European Parliament and of the Council of 4 July 2012 on waste electrical and electronic equipment.
17. Conflict Minerals. Company makes no representations or warranties of any kind and shall have no responsibility or liability whatsoever with regards to the origin or source of any “conflict minerals” (as defined in section 1502 of P.L. 111-203) which may be contained in any of the Goods unless Company has provided Purchaser with a written or electronic certification to the contrary. Such certification that the Goods are either (a) ‘DRC conflict-free’ (as defined in section (d)(4) of Item 1.01 of Form SD, referenced in 17 C.F.R. 249b.400), or (b) contain only conflict minerals sourced from smelters validated as compliant to CFS protocol using the CFS Compliant Smelter List, if any, shall be subject to the assumptions, determinations, methodologies and qualifications set forth therein and as stated on Company’s website. To access, go http://www.peerlesselectronics.com/store/pages/Conflict-Minerals.html.
18. Miscellaneous. (a) Integration. These Terms and the applicable Orders are intended by the parties to be a final, complete and exclusive statement of their agreement with respect to the subject matter hereof. All prior or contemporaneous oral or written statements, agreements, promises or understandings are hereby excluded and are superseded. It is expressly agreed that no course of performance, course of dealing or usage of trade shall be relevant or admissible to contradict, supplement, explain, or modify any express provisions of the terms of these Terms or the applicable Orders. Furthermore, it is expressly agreed that a party’s acceptance of or acquiescence in a course of performance under these Terms shall not be admissible to modify, waive, supplement or explain the terms hereof, even if that party is aware of a course of performance and has an opportunity to object to it.
(b) Assignability. These Terms and the applicable Orders shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Purchaser shall not have the right to assign its rights, benefits or duties hereunder or under any applicable Order without the prior written consent of Company. Any assignment in contravention of this provision shall be null and void, and of no legal force or effect.
(c) Modification or Amendment. Neither these Terms nor the Order may be modified or amended except by an instrument in writing signed by the party or parties against whom enforcement is sought.
(d) Export Control. The Goods and technology were exported from the United States in accordance with the Export Administration Regulations. Diversion therefrom contrary to U.S. law is prohibited. Purchaser represents, warrants and covenants that Goods and the related specifications will not be exported, re-exported or released: (i) to any of the following countries or a national thereof: Cuba, Iran, North Korea, Sudan, Syria or any other country specified in Country Group E (as specified in the then current Supplement No. 1 to Part 740 of the U.S. Export Administration Regulations), (ii) to any Person specified in the then current U.S. Treasury Department Specially Designated Nationals and Blocked Persons List available at the U.S. Department of Treasury website (www.treasury.gov), (iii) to any Person on the then current Unverified List available at the Bureau of Industry and Security website (www.bis.doc.gov), (iv) to any Person on the then current Denied Persons List also available at the Bureau of Industry and Security website, (v) to any Person as specified in Entity List Supplement No. 4 to Part 744 of the U.S. Export Administration Regulations, or (vi) in any manner, to any Person, entity or country, or for any use, except in compliance with, and with all applicable licenses, license exceptions and approvals required under all applicable United States and foreign laws, rules, restrictions and regulations, including, without limitation, the U.S. Export Administration Regulations, the Arms Export Control Act, and the International Traffic In Arms Regulations. This provision shall also apply to direct products of such specifications. Purchaser acknowledges that the Goods will not be used in the design, development, production or use of nuclear, chemical or biological weapons or ballistic missiles or in a facility engaged in such activities or for any defense or military use (collectively, “Weapons Uses”). In the event that the intended end use of any of the Goods falls within any of the Weapons Uses, Purchaser shall immediately notify Company thereof in writing.
(e) ITAR. In the event Purchaser provides Company with technical data (within the meaning of the International Traffic in Arms Regulations, 22 CFR 120 (“ITAR”)), Purchaser shall be responsible for complying with the following prior to providing any such technical data: (i) Purchaser and Company shall have signed a prior written agreement that such technical data is to be handled in accordance with the provisions of ITAR, and (ii) Purchaser shall specifically mark each item of technical data as “ITAR-controlled”. All such technical data shall be sent only to the ITAR Controller in accordance with the foregoing. In the event (x) Purchaser at any time fails to specify any item of technical data as “ITAR-controlled”, (y) there is no written agreement between Purchaser and Company requiring that such technical data is to be handled in accordance with ITAR, and (z) the technical data is sent to a recipient other than the ITAR-Controller, Company will have no responsibility or liability to treat any information as technical data under ITAR and Purchaser shall be barred from any recovery against Company with respect to the handling or export of any such technical data, and Company shall have no liability on account thereof, and same is hereby waived. Further, in such event, Purchaser shall defend, indemnify and hold Company harmless from and against any and all liabilities, damages, losses, claims, actions, proceedings and expenses, including, without limitation, reasonable legal fees (“Damages”) of whatsoever kind and nature, imposed upon, incurred by, asserted, threatened or awarded against Company directly or indirectly arising out of, relating to or resulting from a violation of ITAR with respect to any technical data subject to ITAR that is provided by Purchaser. Any and all amounts due for indemnity shall be paid as Damages are incurred, and in any event, within ten (10) days after written demand therefor.
(f) Substantial Impairment. It is acknowledged that a breach by Purchaser of any provision of these Terms will constitute a substantial impairment to Company of the value of the Order and these Terms permitting Company to, among other things, suspend performance.
(g) Notices. All notices made hereunder shall be made in writing, and shall be deemed adequately delivered if delivered by certified mail, return receipt requested, postage pre-paid or by a courier service that regularly maintains records of its pickups and deliveries, if to Company, at the following address:
Peerless Electronics Inc.
700 Hicksville Road
Bethpage, New York 11714
Attention: Sales Manager
and if to Purchaser, at the email address used by Purchaser to submit an Order or at the shipment address for Goods on file with Company. Mailed notices shall be deemed given when mailed and notices sent by courier shall be deemed given when delivered to the courier service. Both mailed and courier service notices shall be deemed received three (3) days after mailing such notice or delivering it to the courier service, as the case may be.
(h) Change Notification. In the event the manufacturer of a Good notifies Company of changes to any materials contained in its Good that adversely impacts the form, fit, or function of such Good, Company will endeavor to provide an applicable notice to Purchaser of such change in accordance with and subject to Company’s then applicable product change notification process. If Company does not receive such notice from the manufacturer of the Goods or if Company receives such notice but Company determines that such change does not adversely impact form, fit, or function of such Good, Company will not provide Purchaser with any product change notification, even if a material change was made to the specifications, materials, or process used to fabricate the Good in question, and Company will have no liability for failing to do so.
(i) IRO Numbers. Internal reference only (or IRO) numbers and Purchaser’s part numbers are referenced at Purchaser’s request for Purchaser’s convenience. Any references by Company to IRO, part numbers, specifications, drawings or other technical documents contained in any documents issued by Purchaser that are not currently authorized Company part numbers or documents as determined by Company (such unauthorized part numbers and documents are collectively, “Purchaser Internal Reference Documents”) are referenced merely for Purchaser’s internal reference convenience. Accordingly, Purchaser Internal Reference Documents are not expressly or implicitly incorporated by reference herein, nor are they intended to be incorporated by reference herein, and they are not binding on Company or its affiliates.
(j) Wood Packaging. Wood packaging material that is compliant with International Standards for Phytosanitary Measures (“ISPM”) contains an official mark per the Revision of ISPM No. 15 (2009). Compliance with the Revision of ISPM No. 15 (2009) is based solely upon and in reliance of the presence of such official mark on the wood packaging material provided by Company’s suppliers without individual authentication by Company. Accordingly, Company assumes no responsibility for non-compliance therewith and Company shall have no liability therefor.
(k) Captions. The headings and subheadings of these Terms are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of these Terms or any provisions hereof.
(l) Severability. Any term or provision of these Terms which is invalid or unenforceable in any jurisdiction on account of unconscionability or otherwise, shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of these Terms or affecting the validity or enforceability of any of the terms or provisions of these Terms in any other jurisdiction. Further, to the extent that any term or provision hereof is deemed so invalid, void or otherwise unenforceable, but may be made enforceable by amendment thereto, the parties agree that such amendment may be made so that the same shall, nevertheless, be enforceable to the fullest extent permissible under the laws and public policies applied in any such jurisdiction in which enforcement is sought.
(m) Controlling Terms. Notwithstanding anything to the contrary contained herein, to the extent any of the terms and conditions referenced or incorporated in Purchaser’s purchase order, request for quotation, request for proposal, quality notes, or other Purchaser-issued documents are different from, inconsistent with, or conflict with these Terms, these Terms will govern and control. However, if these Terms would not otherwise govern and control due to other documents or circumstances, then (i) acceptance of Purchaser’s order is expressly made conditional on Purchaser’s assent to these Terms; and (ii) if Purchaser does not assent to these Terms, there is no contract.
(n) Waiver of Breach. Any waiver of any of the provisions of these Terms shall not be effective unless made in writing and signed by the Company.
(o) Survival. This section and the following sections 1, 2, 7, 8, 10, 11, 12, 13, and 18 shall survive the consummation, termination and cancellation of these Terms.
(p) Quality Control. Unless Company expressly agrees in writing and such agreement specifically pertains to the Goods, Company will not make any change in its customary quality control procedures to comply with any quality control requirement of Purchaser or its customers.
(q) Tax Exempt Certificates. Some states require Company to charge sales tax on any sale unless the purchase is exempt. For these states, Company shall collect sales tax from Purchaser unless Company receives a formal tax exemption certificate from Purchaser. In these instances, the web cart will charge Purchaser tax. If Purchaser has been charged tax and Purchaser feels it should not have been, Purchaser may send a copy of its valid tax exempt certificate to Credit@peerlesselectronics.com within five (5) days of purchase and Company will credit Purchaser’s account. Please reference the order number when sending Purchaser’s tax exempt certificate.
(r) Minimum Order. Company maintains a fair minimum sales order policy for online orders. Minimum order is $25.00, exclusive of freight charges.
In the event Purchaser is unable to print or store these Terms, Purchaser shall be entitled to obtain a hard copy of these Terms by submitting a written request to:
Peerless Electronics Inc.
700 Hicksville Road
Bethpage, New York 11714
Attention: Sales Manager