This Agreement was last modified on February 23, 2023.
The following Terms and Conditions of Sale (“Agreement”) are applicable to Engineering Acoustics, Inc. (“Seller”) quotations to Seller’s customer (“Buyer”) and remitted purchase orders from Buyers, and are the only conditions applying to sales to Buyer by Seller, of goods and/or services (“Products”) except for other conditions which may be mutually agreed upon by the parties, but only if such other conditions are in writing, signed by an officer of Seller. Other than the foregoing, no other terms or conditions will apply. Seller does not accept or agree to any additional or conflicting terms and conditions sought to be imposed by Buyer and shall not be deemed to have waived any of these Terms and Conditions if it fails to object to the conditions appearing in Buyer’s purchase order, incorporated by reference, or attached to Buyer’s purchase order. Buyer’s issuance of a purchase order for Products offered shall constitute its acceptance of these Terms and Conditions of Sale, notwithstanding any language in the purchase order to the contrary.
- PURCHASE ORDER ACCEPTANCE; PRICE AND QUANTITIES
Except as may be set forth elsewhere in these Terms and Conditions, purchase orders shall not be deemed accepted unless, and until, Seller acknowledges Buyer’s purchase order in writing, which written acknowledgement may be by email to Buyer. All pricing shall be in U.S. dollars. Seller may deliver in complete or partial shipments, in Seller’s sole discretion. Any amount not pre-paid for each shipment shall be due and owing upon receipt of Seller’s invoice for that shipment. See Section 3 for payment terms. Any requested changes in the quantity of units purchased indicated on purchase order may result in a change to unit price and/or delivery dates.
- PAYMENT TERMS
Subject to Seller’s credit approval of Buyer, payment terms are net thirty (30) days from date of invoice, with no discount allowed for earlier payments unless otherwise agreed, in writing, by Seller. A service charge of 1.5% per month is assessable on past due invoices as of the end of each calendar month and Buyer agrees to pay such charge. If Buyer has not received credit approval from Seller, the terms are cash with order (i.e., full pre-payment). In case in which pre-payment is required, the purchase order shall not be deemed accepted unless, and until, full pre-payment has been received by Seller. Based on credit history and size of order, customers may be asked to pay 50% of Non-recurring Charges with placement of order, and the balance due after receipt of approval proof or receipt of parts. Buyer agrees to make prompt and full payment of invoices when due and agrees that if Buyer is delinquent in the payment of any amount due, and Seller pursues legal collection, Buyer will pay all of Seller’s cost and expenses of collection, including reasonable attorney’s fees, together with Seller’s service charge upon the delinquent payments, from date of delinquency. Seller has the right, in addition to any other remedy in law or equity, to alter or suspend credit, demand assurances of payment, refuse shipment, or cancel unfulfilled orders when in Seller’s opinion, the credit of Buyer has become impaired, or when delivery is delayed by default of Buyer, or when Buyer is delinquent in any payment.
- SELLER’S DISCLAIMER OF WARRANTY OF MERCHANTIBILITY AND SUITABILITY FOR A PARTICULAR PURPOSE
Buyer has the sole responsibility to determine the suitability of use of the Products ordered hereunder and the Product’s fitness for Buyer’s particular purpose. SELLER DISCLAMS ANY AND ALL WARRANTIES OF MERCHANTIBILITY AND SUITABILITY FOR A PARTICULAR PURPOSE OR INTENDED USE. Seller will not, and does not, provide guidance to Seller as to the suitability of any Product for any particular purpose. Seller provides a downloadable Microsoft Windows compatible Application Programming Interface (API) with its standard tactor controller products. Unless stated otherwise in writing Seller does not provide programming for specific functions or applications, or additional programming support. It is the Buyer’s responsibility to develop and implement the software necessary for their application. Seller’s Products have not been approved for use by any regulatory agency, including but not limited to the U.S. Food and Drug Administration; and, further, Seller’s Products and are not UL or CE listed. It is Buyer’s sole responsibility to analyze, review, and test any anticipated use of Seller’s Products, and independently conclude satisfactory performance in Buyer’s application and compliance of such use with applicable law. If the manner in which Seller’s Products are used, sold, or shipped requires government and/or regulatory approval, license, or clearance, Buyer shall bear sole responsibility to obtain such government and/or regulatory approval. ANY USE OF SELLER’S PRODUCT BY OR FOR BUYER SHALL BE AT BUYER’S OWN RISK.
Unless otherwise agreed to in writing, Seller warrants its products against defects in workmanship and materials for a period of 12 months from the date of sale by Seller to its Buyer. This warranty is void if the product is misused, altered, tampered with, or is installed or used in a manner that is inconsistent with Seller’s written recommendations, specifications and/or instructions, or fails to perform due to normal wear and tear. Seller is not liable for special, indirect, incidental, consequential or other damages including, but not limited to, loss, damage, personal injury, or any other expense directly or indirectly arising from the use of or inability to use its products either separately or in combination with other products. The sole and exclusive remedy under this warranty is limited, at Seller’s option, to repair or replacement of the defective product. All allegedly defective products must be returned prepaid transportation to Seller after Buyer obtains an RMA number from Seller. THE ABOVE WARRANTY IS SELLER’S SOLE WARRANTY REGARDING SELLER’S PRODUCTS, AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED. ALL OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED BY SELLER.
- LIMITATION OF LIABILITY; INDEMNIFICATION
The total liability of Seller on any and all claims, whether in contract, warranty, tort (including negligence or patent infringement) or otherwise, arising out of, connected with, or resulting from the sale of the Products to Buyer shall not exceed the price of the Products or services provided by Seller to Buyer. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR EXEMPLARY DAMAGES OF ANY KIND OR NATURE INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUES, LOSS OF USE OF THE PRODUCTS OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COSTS OF SUBSTITUTE GOODS, FACILITIES, SERVICES. If Buyer transfers title to, or leases the Products sold hereunder to, or otherwise permits or suffers use by, any third party, Buyer shall obtain from such third party a provision affording Seller the protections provided in the previous sentence. Buyer shall, at its sole expense, fully indemnify, defend, and hold Seller and its officers, directors, employees, shareholders, agents, successors and assigns harmless from and against all claims, damages, losses, costs and expenses, including attorneys’ fees, in favor of any person or entity arising from the advertising, purchasing, re-sale, transportation, storage, and/or use of Seller’s Products by Seller or by any such third party to whom Seller has transferred, loaned, bailed or delivered Seller’s Products, worldwide, including, but not limited to, claims, damages, losses, settlements, costs and expenses, including attorneys’ fees, arising from claims of personal injury, death or property damage, claims for infringement of third part intellectual property rights, and claims for violation of any statute, ordinance, rule, regulation, order, or decree.
- PRECEDENCE OF SELLER’S TERMS AND CONDITIONS
The Terms and Conditions of Sale as stated herein are accepted by Buyer and shall govern in event of conflict with any terms and conditions of Buyer’s purchase order, and are not subject to change by reason of any written or verbal statements by Buyer or by any terms stated in Buyer’s purchase order unless made in writing and accepted, in writing, by Seller, over the signature of an officer of Seller.
- NON-CANCELLABLE AND NON-RETURNABLE
Purchase orders are accepted with mutual understanding that, except as provided below, it is not subject to cancellation by Buyer without the written consent of the Seller. Seller, in its sole discretion, may agree to a cancellation request by Buyer, but may assess a charge, especially in the case of custom products in which case Seller will charge Buyer a cancellation fee at least equal to the quoted non-recurring engineering and prototype charge, plus an amount equal to three times the costs incurred by Seller for the cancelled order. Such costs include, but are not limited to, material, direct labor, overhead (at Seller’s actual overhead rate) and Seller’s cost paid to Seller’s vendors. Title to Products which form the subject matter of a cancelled order agreed to by Seller shall revert to Seller and Seller may sell such Products without accounting to Buyer. Once shipped, the order is not cancellable or returnable except under the Warranty terms in Section 5.
- DELIVERY RESCHEDULE
Delivery of Products under this Agreement may be rescheduled by Buyer with approval from Seller. Such rescheduling, if approved, may incur a rescheduling fee, which will be quoted at the time of the reschedule request.
- PATENTS, COPYRIGHTS AND TRADEMARKS
Seller makes no representation or warranty that Seller’s Products are free of any rightful claim of any third party for infringement of any patent, trade secret, copyright, trademark, or any other intellectual property right. It is Buyer’s sole responsibility to determine whether Buyer’s importing, purchase, re-sale and/or use of Buyer’s Products violate any applicable intellectual property rights of any third party, worldwide.
- TIME LIMIT FOR ACCEPTANCE OF PRODUCT BY BUYER
Any rejection of allegedly non-compliant Products, errors, deficiencies, or imperfections must be made within thirty (30) days after Buyer’s receipt of such Products or they are waived. Products failing to meet Seller’s express warranty, as set forth above, will be replaced or, at Seller’s option, a credit will be allowed for the price thereof. Products may be returned only after the issuance of a return authorization number by Seller and such return authorization number must appear on the packaging or it will be returned to Buyer at Buyer’s expense.
- FORCE MAJEURE
Manufacture, shipment, and delivery of any Product by Seller will be subject to any prohibition, restriction, order, direction, requisition, regulation, or condition imposed by applicable governmental authorities Seller shall not be liable for any delay or failure to perform cause by acts or decrees of such governmental authorities, nor shall Seller be liable, in whole or in part, for any failure to perform due, in whole or in part, by acts of God, fire, floods, earthquakes, named storms, tornados, labor strikes, wars or hostilities, work stoppages, differences with workmen, industrial accidents, casualties, pandemic, government-ordered stay at home restrictions, loss of electrical power, loss of internet services, inability to procure supplies and raw materials, or delays in transportation, that are , or were, beyond Seller’s control (each individually a “Force Majeure Event”). In the case of a Force Majeure Event, Seller shall at the earliest reasonable opportunity notify Buyer of the Force Majeure Event, and Seller shall be relieved of any obligation to perform until such Force Majeure Event is no longer operative.
- DELIVERY, PASSING OF TITLE
Delivery of Products shall be made F.O.B. Seller, facility. Title and all cost and risk of loss or damage shall thereafter be borne by Buyer. Whenever freight is collected or is prepaid by Seller, freight shall be charged to Buyer. If freight is prepaid by Seller, in whole or part, Seller shall have the right to select means of transportation. Buyer shall also pay all costs and expense for import duties, export costs and expenses, special packaging and all other shipment costs and may be billed therefore in the event Seller pays or is charged with the same. Buyer agrees not to ship Products outside of the United States without Buyer obtaining an appropriate export or re-export license.
- SECURITY INTEREST
Seller reserves, and Buyer hereby grants to Seller, a security interest in all Products purchased hereunder and, in any proceeds, thereof until Seller has received payment in full of the purchase price and any other amounts due hereunder. Seller shall have all the rights and remedies of a secured party under the Uniform Commercial Code, and Buyer agrees, at Seller’s request, to execute financing statements and to take such other action as Seller may reasonably request to carry out the intent of this Section. Buyer’s failure to pay any amounts when due shall give Seller the right to possession and removal of the Products at any time upon Seller’s demand. Seller’s taking of such possession shall be without prejudice to any other legal remedies Seller may have.
No failure of Seller to insist upon strict compliance by Buyer with this Agreement or to exercise any right occurring from any default of Buyer shall impair Seller’s rights in case Buyer’s default continues or in case of any subsequent default by Buyer. Waiver by Seller of any breach of contract shall not be construed as a waiver of any other existing or future breach.
In case Buyer shall fail to make payments in accordance with this Agreement, Seller, in addition to its other rights and remedies, may, at its option, defer further shipments until such payments are made, cancel buyers open account terms, or terminate the contract with, or without notice, and Buyer shall not have any cause of action or to be entitled to any set off, counterclaim, or recoupment against Seller by reason of any such action.
Any purchase order from Buyer under this Agreement shall not be assigned by the Buyer to any other party without the prior written consent of Seller.
- SALES TAX
Buyer agrees to pay all applicable taxes (including sales taxes) and duties on this Agreement except for Seller’s income taxes. In the event that Buyer certifies that the Products purchased herein are for resale by Buyer and Buyer provides Seller with a copy of Buyer’s re-sale certificate, the Buyer need not pay sales tax to Seller.
- GOVERNING LAW
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Florida, except for its choice of law provisions.
- ATTORNEY’S FEES
As regards any dispute related to the validity or enforceability of these Terms and Conditions; or related to the ordering, sale and purchase of Seller’s Products to Buyer; or arising under any provision of any Purchase Order or any provision of these Terms and Conditions, the prevailing party shall be awarded its reasonable attorney’s fees, costs of experts, other costs and expenses of litigation and pre-suit investigation of such dispute.
- DIRECT-TO-CONSUMER AND OTHER SALES MAY BE DENIED
Any other term of these Terms and Conditions notwithstanding, Seller may refuse, or may cancel and refund, any order for Supplier’s Product by an individual consumer, in Seller’s sole discretion. Certain of Seller’s Products may, in Seller’s sole discretion, be designated as for sale only on a business-to-business basis, and not directly to individual consumers. Thus, Seller may, in Seller’s sole discretion: 1) refuse to quote such Products to an individual consumer; refuse to sell such Products to, or acknowledge orders from, individual consumers for such Products; and 3) upon learning that a customer is an individual consumer, and not a Business, after an order for such Product has been acknowledged, cancel the order and refund any amount paid for such order to the customer. An “individual consumer” is any person or entity that is not a Business. A “Business” as used in this Section 22 means a juristic entity that has not been dissolved or wound up, that has and can produce a Federal Employer Identification Number (FEIN) issued by the U.S. Internal Revenue Service (IRS) or equivalent for non-U.S. entities, and is an ongoing business in a currently operative state. Seller may require evidence of the foregoing to be produced by Buyer, that, in Seller’s sole discretion, is sufficient to show that Buyer is a Business, and not an individual consumer, under this Section 22, prior to the acknowledgment of a purchase order. Further, as allowable by applicable law, Seller may deny sales of Product to any person or entity if, in Seller’s sole discretion, such person or entity intends to use the Product for any illegal, distasteful, immoral or harmful purpose, or to reverse engineer the Product. Seller may also deny sales for export to certain foreign countries.
In the event that any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall continue in full force and effect. The headings of the Agreement are for convenience of reference only and shall not affect the construction of any provision herein.