STANDARD TERMS AND CONDITIONS OF SALE
The Terms and Conditions of Sale appearing below govern the sale of goods and/or services sold or supplied by CLEAR Solutions, Inc. and its affiliates, referred to herein as “Seller” while the purchaser is referred to herein as “Buyer.” The parties agree that even if these Terms and Conditions of Sale do not accompany every product sold by Seller, these Terms and Conditions of Sale shall govern all sales made by Seller until such time as new terms and conditions are provided by Seller to Buyer.
- Acceptance. Buyer’s order is accepted upon the following terms and conditions. If the terms stated in Buyer’s order are inconsistent with these terms, this shall constitute a counteroffer and Buyer shall be deemed to have accepted Seller’s terms unless it notifies Seller to the contrary in writing within three (2) days after receiving Seller’s acknowledgment. Minimum order requirements may apply based on the product you are ordering; confirm any minimum order requirements with your Customer Service or Account Rep. No additions to or modifications of any of the terms and conditions hereof shall be effective unless made in writing and signed by both parties. These Terms and Conditions constitute the entire agreement between the Seller and Buyer for the purchase and sale of the goods and/or services identified on Seller’s acknowledgement of Buyer’s purchase order and supersede all other proposals and quotations.
- Description of Goods. The only specifications that are a part of this Agreement are those written specifications acknowledged in writing by Seller and which Seller has initiated and attached to the applicable acknowledgement of Buyer’s purchase order.
- Cancellation. Cancellation of orders by Buyer can only be made with Seller’s prior written consent. If the product is being built to Buyer’s specification, Buyer is responsible for all expenses incurred by Seller, including any raw materials and other non-cancellable commitments, or a minimum 25% cancellation charge, whichever is greater. Orders cancelled less than 10 days prior to the scheduled ship date shall be finished and billed at contract price.
- Quotations and Prices. Orders will be billed at the price in effect at the time of order, unless otherwise specified in the quotation. All orders require a valid customer PO number and written confirmation prior to acceptance by Seller. Quotations are valid for thirty (30) days unless otherwise specified and represent no obligation until the purchase order is acknowledged and accepted by Seller. The price and performance of orders are subject to resource availability and costs within the control of Seller at the time of manufacture. Seller reserves the right to cancel or adjust prices and delivery without notice. Unless otherwise stated in writing by Seller, all prices quoted shall be exclusive of and Buyer shall pay the cost of transportation, insurance, taxes (including, without limitation, any sales, use, or similar tax), license fees, customs fees, duties and other charges related thereto. All clerical errors are subject to correction. Any price discrepancy on orders will require a revised PO from Buyer.
- Payment. Subject to the provisions of Seller’s credit policy, payment terms are net 30 days from date of invoice unless otherwise noted on the invoice. Thereafter, interest shall accrue on unpaid amounts at the lesser of the maximum rate allowable under law or at the rate of 1.5% per month. All payments must be made in US funds. Buyer shall be liable for Seller’s costs of collection, including without limitation, reasonable attorneys’ fees.
- Delivery/Shipments and Export Controls. Delivery & Shipment – Shipping date(s) proposed by Seller constitutes only an estimate on the part of the Seller. Buyer’s PO must specify preferred carrier or order will be shipped via best way, pre-pay and added to the invoice. Delivery of goods to a carrier at the Named Place (whether Seller’s plant or whatever other place is identified and agreed) shall constitute delivery. Terms used shall be defined as in Incoterms 2010 Rules. Shipment of all Products shall be F.O.B. point of distribution by Seller. Identification of the Products shall occur when they leave Seller point of distribution, at which time title and risk of loss shall pass to Buyer.
- Inspection / Returns. Upon receipt of the goods, Buyer shall promptly and without delay examine the goods as to their condition, quality and quantity. Buyer shall give written notice to Seller within (10) days from the date of receipt of any claim for shortage, damage, or non-conformance with the terms hereof. Goods built to Buyer’s or an end user’s specifications and special orders cannot be returned. No product may be returned without Seller’s prior written approval. Transportation charges are to be prepaid by Buyer. Returned goods are subject to the Seller’s inspection and acceptance. Seller may, in its discretion, either (a) credit to Buyer the amount paid for the returned items, (b) repair the returned items or (c) replace one or all returned items within a reasonable time after Seller determines that the returned goods are not in accordance herewith, and in such event Seller shall not be liable for any damages arising from the defective delivery or delay caused thereby. When expressly authorized by Seller in writing, unused products may be returned to Seller subject to service handling, restocking charges and rebuilding charges to “as new” condition for a credit only.
- Force Majeure: Seller shall not be liable for any delays in the delivery of orders, due in whole or in part, directly or indirectly, to fire, act of God, strike, shortage of raw materials, supplies or components, retooling, upgrading of technology, delays of carriers, embargo, government order or directive, or any other circumstance beyond Seller reasonable control.
- Indemnification Against Infringement: Buyer shall protect and indemnify Seller and its affiliates, directors, officers, agents and employees against all claims for damages or profits, including all reasonable costs incurred by Seller in connection therewith, arising from infringement of patents, copyrights, trademarks or misappropriation of designs, proprietary data or trade secrets of any person with respect to all goods manufactured either in whole or in part in accordance with Buyer’s specification.
- Indemnification: Buyer shall indemnify and hold harmless Seller its affiliates, directors, officers, agents and employees from all loses, claims, damages, expenses or liabilities of any kind (including attorney’s fees and court costs) resulting from or arising out of any use by Buyer of the products purchased herein.
- Repairs, Alterations, and Modification: Any repairs made to the products shipped by the Seller shall be at the expense of the Buyer unless specifically authorized by the Seller in writing. Alterations or modifications to the product involving welding, soldering, drilling, or machining by the Buyer are not permitted or approved by the Seller without specific authorization in writing by the Seller. Any unauthorized alteration or modification by the Buyer will void the warranty.
- Warranty: Seller warrants its products against defects in workmanship and material as per the manufacturers’ stated warranty under normal use and service and otherwise when such products are used in accordance with instructions furnished by Seller and for purposes disclosed in writing at the time of purchase, if any. Seller’s liability under this warranty shall be limited to repair or replacement, F.O.B point of distribution, of any defective products or part which, having been returned to the manufacturer, transportation charges prepaid, has been inspected and determined by the Seller or manufacturer to be defective.
This warranty is in lieu of any other warranty either expressed or implied, as to the merchantability, quality, description, and fitness for any particular purpose or use, or any other matter.
Under no circumstance shall the Seller be liable to Buyer or any other third party for any loss of profits or other direct or indirect costs, expenses, losses or consequential damages arising out of or as a result of any defects in or failure of its products or any part or parts thereof or arising out of or as a result of parts or components incorporated in Seller’s products but not supplied by the Seller.
- Arbitration: Any and all disputes or controversies arising under, out of or in connection with this contract or the sale or performance of the products shall be resolved by final and binding arbitration in the State of California.
- General: No items to be furnished hereunder shall be exported by Buyer or by any customer of Buyer unless Seller is first notified in writing of the intention to so export and all applicable regulations and licenses are complied with and obtained by Buyer or its customer.
Seller reserves the right to make changes in design at any time without incurring any obligation to make such changes in any items previously purchased, whether or not delivered.
Seller expressly disclaims application of any government procurement regulations in connection with any items to be furnished hereunder unless expressly agreed to in writing by an authorized representative of Seller. Buyer is responsible for complying with all laws and regulations applicable to the purchase, export or import of the product of any state or country. Seller’s liability to Buyer under this Agreement shall be limited to the value of the products that are subject to such claim. In no event will Seller be liable to Buyer for lost profits or revenues, claims of Buyer’s customers or any special, indirect, consequential or incidental damages.
The failure of Seller to enforce at any time any of the provisions of this contract, to exercise any election or option provided herein, or to require at any time performance by Buyer of any of the provisions herewith shall in no way be construed to be a waiver of any such provisions, or the right of Seller thereafter to enforce each and every provision.
- Back Charges: Under no circumstance shall the Seller be liable for or accept back charges.