1. PRODUCTS
1.1 "Products" shall mean any products identified for sale on: (a) AEMC's website(s); (b) any of AEMC's proposals or quotations; or (c) any of AEMC's invoices.
2. ORDERS2.1 Buyer shall purchase products by
issuing offers as issued by an authorized representative, indicating
specific Products, quantity, price, total purchase price, shipping
instructions, shipto addresses, tax exempt certifications, if
applicable, and any other special instructions. Any contingencies
contained on such order are not binding upon AEMC. AEMC will
accept or reject orders according to its thencurrent process.
All orders are subject to acceptance by AEMC at its corporate
headquarters.
2.2 Each offer made by a Buyer for Products
offered becomes legally binding upon acceptance by the Seller.
Upon acceptance of any offer, Buyer agrees to submit a Purchase
Order for the offered Products. AEMC will contact Buyer to finalize
the purchase and arrange the subsequent shipping of the Products.
3.1 Shipping dates will be established
by AEMC upon receipt of orders from Buyer.
3.2 Shipping
terms are FCA AEMC designated shipping location. Risk of loss
and title shall pass from AEMC to Buyer upon delivery to the
carrier or Buyer's representative at the FCA point. Delivery
shall be deemed made upon transfer of possession to the carrier.
Buyer shall be responsible for all freight, handling, customs
charges and insurance charges. Unless given written instruction,
AEMC shall select the carrier. In no event shall AEMC have any
liability in connection with shipment, nor shall the carrier
be deemed to be an agent of AEMC. AEMC shall not be liable for
damage or penalty for delay in delivery or for failure to give
notice of any delay.
3.3 Buyer grants AEMC a security
interest in products purchased under this Agreement to secure
payment for those products purchased. If requested by AEMC,
Buyer agrees to execute financing statements to perfect this
security interest.
4.1 Unless otherwise specified, prices
for products are quoted in US dollars and are FCA AEMC designated
shipping location.
4.2 All stated prices are exclusive
of any taxes, fees, duties, or other amounts, however designated,
and including without limitation, value added and withholding
taxes which are levied or based upon such charges, or upon this
Agreement. Any taxes or customs charges related to products
purchased or licensed pursuant to this Agreement shall be paid
by Buyer, or Buyer shall present an exemption certificate acceptable
to the taxing authorities. Applicable taxes shall be billed
as a separate item on the invoice, to the extent possible.
4.3 All payments shall be made by a check acceptable to
AEMC, or by other payment instrument to include PayPal, wire
transfer, or other such payment instrument approved by AEMC.
Unless agreed otherwise the payment must be made to AEMC prior
to delivery. AEMC may elect to extend terms on a preapproved
basis only. By acceptance of this agreement, Buyer agrees that
any payments made to AEMC, via PayPal or by any other payment
vehicle, are subject to all of the terms and conditions contained
herein. Unless otherwise specified, all payments shall be made
in U.S. currency. Any sum not paid by Buyer when due shall bear
interest until paid at a rate of 1.5% per month (18% per annum),
or the maximum rate permitted by law, whichever is less.
5.1 AEMC warrants the form, fit, and
function for a period of 90 days from the date of purchase to
perform in compliance with the manufacturer's published data
sheet. Unless otherwise stated, all orders placed with AEMC
are deemed noncancelable and nonreturnable, except for instances
as covered by AEMC's warranty. All other warranties are set
forth in the product Manufacturer's Limited Warranty Statement
applicable to and/or delivered with the Products.
5.2
It is the responsibility of the buyer to thoroughly inspect
and test all product received from AEMC immediately upon receipt
and promptly notify AEMC of problems. Products are deemed accepted
by Buyer unless AEMC is notified in writing of any warranty
claims within 90 days of receipt. Any claims for shortages or
intransit damage must be reported in writing to AEMC. within
10 days of receipt.
5.3 AEMC DISCLAIMS ALL OTHER WARRANTIES,
EXPRESSED OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF
DEALING, USAGE, OR TRADE PRACTICE.
5.4 In no event shall
AEMC or its supplier's liability to Buyer, whether in contract,
tort (including negligence), or otherwise, exceed the price
paid by Buyer under this Agreement. The foregoing limitations
shall apply even if the abovestated warranty fails of its essential
purpose.
5.5 IN NO EVENT WILL AEMC OR ITS SUPPLIERS BE
LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL,
INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER
CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT
OF THE USE OF OR INABILITY TO USE THE PRODUCT EVEN IF AEMC OR
ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.6 In all cases where a product is returned, Buyer shall
call and obtain a Return Material Authorization ("RMA") number
from AEMC. A customer has ten (10) business days from notification
of approval of the RMA request to arrange for and ship the product
back to AEMC. If the product is not in transit by the end of
the tenday period, the RMA will typically be closed and the
customer notified that the RMA is no longer valid. All RMAs
shall be for replacement Products, or at AEMC’s discretion,
credit for future purchases.
5.7 For product returned,
Buyer is responsible for: (a) proper packing of products, including
description of the failure; (b) insurance of all packages for
replacement cost; (c) shipment FCA AEMC designated reception
location; (d) return of products within five (5) days after
issuance of the RMA number, including restocking fees where
applicable; (e) shipping costs to AEMC, and (f) compliance with
AEMC RMA procedure for all shipments, as follows: (i) each request
to AEMC for an RMA number must specify the number, type, and
serial number, if applicable, for each product to be returned;
AEMC will provide the local RMA shipment address upon request;
and (ii) product sent back to AEMC must agree exactly in the
number, type, and serial numbers, if associated with the RMA
transaction. AEMC, at its option, will replace the returned
product or issue a credit for future purchases at the original
purchase price of the product. Shipping costs will not be refunded.
6.1 AEMC shall have no liability for
any claim, suit or proceeding brought against Buyer based on
a claim that any Product supplied hereunder infringes any copyright,
patent, or other intellectual property right in the United States
or any other country.
6.2 AEMC has no liability for any
claim based upon the combination, operation, or use of any product
supplied hereunder with equipment, devices, or software, or
for any claim based upon alteration or modification of any product
supplied hereunder.
6.3 AEMC SHALL BE HELD HARMLESS FOR
TYPOGRAPHICAL ERRORS APPEARING ON THE AEMC WEBSITE TO INCLUDE
PART NUMBERING, QUANTITY, OR PRICING ERRORS.
6.4 THE
FOREGOING STATES THE ENTIRE OBLIGATION OF AEMC WITH RESPECT
TO INFRINGEMENT OF PROPRIETARY RIGHTS AND AEMC DISCLAIMS, ALL
WARRANTIES OF NONINFRINGEMENT WITH RESPECT TO THE PRODUCTS.
7.1 Buyer shall obtain all licenses,
permits, and approvals required by any government and shall
comply with all applicable laws, rules, policies, and procedures
of the U.S. Government.
7.2 All shipments are sold under
INCOTERMS, delivered duty unpaid (DDU). Buyer shall be responsible
for all VAT (Value Added Taxes), duties, custom charges, and
associated import fees.
Buyer shall hold confidential and shall not use or permit others to use any confidential information identified as such in writing or orally by AEMC or information which Buyer knows or has reason to know is confidential, proprietary, or trade secret information of AEMC.
9. LIMITATION OF LIABILITYNOTWITHSTANDING ANYTHING ELSE HEREIN, EXCEPT FOR CLAIMS OF PERSONAL INJURY OR DEATH, ALL LIABILITY OF AEMC AND ITS SUPPLIERS UNDER THIS AGREEMENT OR OTHERWISE SHALL BE LIMITED TO MONEY PAID TO AEMC UNDER THIS AGREEMENT AND IN THE CASE OF DAMAGES RELATING TO ANY ALLEGEDLY DEFECTIVE OR INFRINGING PRODUCT, SHALL, UNDER ANY LEGAL OR EQUITABLE THEORY, BE FURTHER LIMITED TO THE PURCHASE PRICE PAID BY BUYER FOR SUCH PRODUCT.
10. CONSEQUENTIAL DAMAGES WAIVERIN NO EVENT SHALL AEMC OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR LOST DATA, OR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF AEMC OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. GENERAL TERMS11.1 The validity, interpretation, and
performance of this Agreement shall be controlled by and construed
under the laws of the County of Maricopa, State of Arizona,
United States of America, as if performed wholly within the
County of Maricopa, State of Arizona without giving effect to
the principles of conflict of law. Any legal actions by either
party under this agreement shall be taken in the court of Maricopa
County, Arizona. The parties specifically disclaim the UN Convention
on Contracts for the International Sale of Goods.
11.2
AEMC shall not be liable for any delay or failure in performance
whatsoever due to acts of God, earthquakes, shortage of supplies,
transportation difficulties, labor disputes, riots, war, fire,
epidemics, and other occurrences beyond AEMC's reasonable control.
11.3 No waiver of rights under this Agreement by either
party shall constitute a subsequent waiver of this or any other
right under this Agreement.
11.4 Neither this Agreement
nor any rights under this Agreement, other than monies due or
to become due, shall be assigned or otherwise transferred by
Buyer (by operation of law or otherwise) without the prior written
consent of AEMC. This Agreement shall bind and inure to the
benefit of the successors and permitted assigns of the parties.
11.5 In the event that any of the terms of this Agreement
become or are declared to be illegal by any court of competent
jurisdiction, such terms shall be null and void and shall be
deemed deleted from this Agreement. All remaining terms of this
Agreement shall remain in full force and effect.
11.6
In the event of a breach of this Agreement, the breaching party
shall pay to the other party any reasonable attorneys' fees
and other costs and expenses incurred by the nonbreaching party
in connection with the enforcement of any provisions of this
Agreement.
11.7 Neither party has the right or authority
to, and shall not, assume or create any obligation of any nature
whatsoever on behalf of the other party or bind the other party
in any respect whatsoever.
11.8 This Agreement, including
the product warranty referenced herein, constitutes the entire
agreement between the parties hereto concerning the subject
matter of this Agreement, and there are no conditions, understandings,
agreements, representations or warranties, expressed or implied,
which are not specified herein. This Agreement may only be modified
by a written document executed by authorized representatives
of AEMC and Buyer.