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. ORDERS
2.1 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
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
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 LIABILITY
NOTWITHSTANDING 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 WAIVER
IN 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 TERMS
11.1 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.