1. Agreement. We are happy to accept your offer to do business with Peerless Electronics Inc. (“Peerless”), but please be aware that THIS ACCEPTANCE IS EXPRESSLY MADE CONDITIONAL ON ASSENT TO these terms and conditions of sale (“Terms and Conditions”) for the sale of products (“Products”) by Peerless to you, its customer, (“Buyer”). These Terms and Conditions shall apply to the exclusion of all other terms referred to in any purchase order, acknowledgment, confirmation or any other documentation issued by either party, unless agreed in writing and signed by an authorized officer of Peerless. Peerless reserves the right to amend these Terms and Conditions at any time. The most current version of these Terms and Conditions can be found at http://www.peerlesselectronics.com/ (the “Website”). Buyer may place purchase orders (the “Purchase Order”) with Peerless on an as-needed basis via the Website, e-mail, mail, fax, or other commercially reasonable means. No Purchase Order shall become binding upon Peerless until Peerless either: (i) accepts the Purchase Order through a written acknowledgment, or (ii) ships the products requested in the Purchase Order (“Acceptance”).
2. Pricing. Prices shall be as listed on the Website by Peerless. Peerless may change the price without notice to Buyer. Quotations apply only if the full quantity of a lot is released at one time. Peerless reserves the right to make extra charges for small orders. Peerless reserves the right to correct all stenographic and clerical errors at any time. Prices do not include: taxes, duties, license fees, or other costs imposed on the shipment and use, and sale of Peerless’ products. Buyer shall be liable to Peerless for such costs. There will be a $5 handling charge for orders shipped to The United States of America, Canada and Mexico. Unfortunately due to new packaging regulations that charge by package dimensions in addition to weight, there will be a $35 handling charge for all orders shipped outside the U.S., Canada, and Mexico.
3. Payment Terms. All payments for products purchased hereunder shall be made in United States dollars and paid in full at the time of order. Peerless shall e-mail an invoice for Buyer at time of the shipment. In the event an invoice shall be placed with an attorney for collection, Buyer shall be liable for all fees and costs incurred by Peerless
4. Delivery and Title. Title, risk of loss and the shipment of products shall be EXW Peerless’ facility (Incoterms 2010 and as amended). Unless Buyer has made other arrangements, freight and insurance shall be charged at Peerless’ standard rates.
5. Cancellations. Open Purchase Orders may not be cancelled nor may products be returned without Peerless’ prior written consent, which may be withheld in its sole discretion.
6. Warranty and Return Policy.
PEERLESS MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED WITH RESPECT TO ANY PRODUCT, AND SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES FOR MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR ANY PARTICULAR PURPOSE. PEERLESS' SOLE OBLIGATION AND LIABILITY FOR PRODUCT THAT DOES NOT CONFORM TO THE SPECIFICATION SHALL BE, AT PEERLESS’ OPTION, TO REPLACE SUCH PRODUCT OR REFUND TO BUYER THE AMOUNT PAID BY BUYER THEREFOR. IN NO EVENT SHALL PEERLESS' LIABILITY EXCEED THE BUYER'S PURCHASE PRICE. THE FOREGOING REMEDY SHALL BE SUBJECT TO BUYER'S WRITTEN NOTIFICATION OF NON-CONFORMANCE AND RETURN OF THE PRODUCT WITHIN FOURTEEN (14) DAYS OF PURCHASE. THE FOREGOING REMEDY DOES NOT APPLY TO PRODUCTS THAT HAVE BEEN SUBJECTED TO MISUSE (INCLUDING WITHOUT LIMITATION STATIC DISCHARGE), NEGLECT, ACCIDENT OR MODIFICATION, OR TO PRODUCTS THAT HAVE BEEN SOLDERED OR ALTERED DURING ASSEMBLY, OR ARE OTHERWISE NOT CAPABLE OF BEING TESTED, OR IF DAMAGE OCCURS AS A RESULT OF THE FAILURE OF BUYER TO FOLLOW SPECIFIC INSTRUCTIONS. NON STOCK ITEMS (NCNR ITEMS) ARE SPECIAL ORDERS AND ARE THEREFORE CONSIDERED TO BE NON-CANCELABLE AND NON RETURNABLE.
7. Limitation of Liability. The remedies set forth in Section 7 shall be the exclusive remedies available to Buyer and the sole liability of Peerless with respect to the products sold. In no event shall either party be liable to the other or any third party under any express or implied agreement, statute or under any legal or equitable theory, for direct damages, consequential, special, indirect, incidental, punitive or exemplary losses, damages or expenses, or for lost profits, lost business, or for lost opportunities, regardless of whether the party has been advised of the possibility of such damages. Further, neither party shall have any liability to the other or any third party for any failure or delay due to matters beyond its reasonable control.
8. Confidential Information.
a. Definition. All written information and data exchanged by and between the parties that is marked as “Confidential” and that the unauthorized disclosure would be harmful shall be deemed Confidential Information. Notwithstanding the forgoing, Confidential Information shall not include: (i) information that is or becomes generally known or available through no act or omission by the receiving party; (ii) information already known by the receiving party at the time of receipt; (iii) information furnished to the receiving party by a third party not under an obligation of confidentiality to the disclosing party; or (iv) information disclosed with the other party’s permission.
b. Obligation. Each party shall keep confidential, not disclose to any third party, and not use for its own benefit or for the benefit of any third party any Confidential Information disclosed by the other party.
c. Exclusions. Either party shall be entitled to disclose Confidential Information if required to do so by a law, governmental agency or judicial or administrative process. Additionally, the foregoing obligation shall not apply to each party’s attorneys or accountants or Peerless’ suppliers and subcontractors who require technical information to fulfill Buyer’s requests for goods, services or quotations.
a. Notices. Any notice or other communication that is required or permitted hereunder shall be in writing and shall be deemed given (a) on the date established by the sender as having been delivered personally, (b) on the date delivered by Federal Express or other reputable overnight delivery service as established by evidence obtained from the courier, or (c) on the date sent by facsimile, with confirmation of transmission, if sent during normal business hours of the recipient, if not, then on the next business day. Such communications are to be given or made to the parties at the addresses set forth below their signatures (or to such other address as either party may designate by notice in accordance with the provisions of this paragraph).
b. Entire Agreement. This Agreement constitutes the sole and entire agreement and understanding between the parties with respect to its subject matter and supersedes all agreements and understandings, express or implied, between the parties and all previous inducements or representations. Unless Peerless agrees in a writing that makes an express reference to the terms and conditions contained within the Buyer’s purchase order or similar documents, such terms and conditions shall not apply to or be binding on Peerless and are rejected by Peerless without the need of further notice or objection.
c. Amendment. Any provision of this Agreement may be amended or waived only if such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement, or in the case of a waiver, by the party against whom the waiver is to be effective.
d. Governing Law. This Agreement shall be governed by and interpreted and enforced in accordance with the laws of the State of New York, without giving effect to any choice of law or conflict of laws rules or provisions. Any controversy or claim arising out of this Agreement shall be resolved in a court in New York.
e. Force Majeure. Peerless shall not be in default by reason of any failure or delay in the performance of its obligations where such failure or delay is due to any cause beyond its reasonable control, including, but not limited to, strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, embargo, natural disaster, acts of God, acts of terrorism, flood, fire, sabotage, accident, delay in transportation, loss and destruction of property, intervention by governmental entities, change in laws, regulations or orders, other events or any other circumstances or causes beyond Peerless' reasonable control.
f. Relationship of Parties. Each party is an independent contractor with respect to the other. No other relationship is intended. Neither party shall act in a manner that expresses or implies a relationship other than that of independent contractor, nor shall either have the authority to enter into any contracts in the name of or on behalf of the other party.
g. No Third Party Beneficiaries. No provision of this Agreement is intended nor shall it be construed to confer upon any person or entity, other than the parties, any rights, remedies or benefits.
h. Headings. The section headings in this Agreement are inserted only for convenience and in no way define, limit, construe or describe the scope of such section or in any way affect such section.
i. Binding Effect/Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns. This Agreement shall not be assignable by either party, without the express written consent of the other party, such consent not to be unreasonably withheld; provided, that no consent shall be required for an assignment to a person or entity in which such party has merged or which has otherwise succeeded to all or substantially all of such party’s business and/or assets, to which this Agreement pertains and which has assumed in writing or by operation of law its obligations under this Agreement. Any attempted assignment in violation of this provision will be void.
j. Severability. Any provision of this Agreement that is invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
k. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Electronic signatures and acceptances shall be treated as original signatures.
l. Survivability. Sections 6, 7, 8, 9, and 10 shall survive any termination of this Agreement.
m. Website. Although care has been taken by Peerless in compiling the information contained on its website to ensure that it is current and accurate, Peerless is not responsible for any damages resulting from errors, omissions or inaccuracies on its website, whether attributable to inadvertence, negligence or otherwise.
n. Export Control, The products sold on this site may be subject to the Export Administration Regulations and other federal laws and regulations controlling and/or restricting exportation from the United States. The offer for sale of any of the products on this site is not intended, and is not to be construed, as a representation that these products may be legally exported for any particular use or to any destination, and sale for export or diversion contrary to U.S. law is prohibited. Any customer purchasing these products (whether domestic or foreign) is responsible for consulting and complying with applicable laws and regulations before export from the United States.
10. Tax Exempt Certificates
Some states require us to charge sales tax on any sale unless the purchase is exempt. For these states, Peerless collects sales tax from our customers unless we have a formal tax exemption certificate for that customer.
In these instances the web cart will charge you tax. If your business or organization has been charged tax and you feel it should not have been, please send a copy of your valid tax exempt certificate to firstname.lastname@example.org within 5 days of purchase and we will credit your account. Please reference your order number when sending your certificate.