Sales Terms and Conditions
1. General. These Terms and Conditions govern the sale to the customer specified in this invoice (“Buyer”) by Gerard EMG, Inc of the products specified on this invoice (“Products”). Notwithstanding any terms or conditions contained on Buyer’s order form, Gerard EMG, Inc’s sale of the Products is made expressly conditional on Buyer’s agreement to these Terms and Conditions.
2. Delivery. All products shall be shipped FOB. Risk of loss shall pass to Buyer upon delivery of the Products to the common carrier, unless otherwise agreed to by Gerard EMG, Inc. in writing. Gerard EMG, Inc. shall be entitled to refuse or to delay shipments for failure of Buyer to pay when due any payments due from Buyer to Gerard EMG, Inc whether on this or any other agreement between Gerard EMG, Inc and buyer. Gerard EMG, Inc shall have the right to deliver the Products at one time or in installments.
3. Cancellation and Returns. Orders accepted by Gerard EMG, Inc may be cancelled by Buyer only upon Gerard EMG, Inc’s written consent and issuance of a Return Material Authorization (“RMA”). Any of the Products returned without an RMA will be refused. In the event Buyer cancels an order for any reason, and without limiting any other legal remedy which Gerard EMG, Inc may have as a result of such cancellation, Buyer shall reimburse Gerard EMG, Inc for any reasonable expenses incurred by Gerard EMG, Inc, including a restocking charge of 20% of the price of the Products. Special orders for products not normally stocked are non-cancellable and non-refundable. Any order for products which have been shipped from Gerard EMG, Inc’s facility are non-cancellable and non-refundable.
4. Inspection and Acceptance of Goods. Buyer must inspect the Products for visual imperfections or discrepancies within five (5) days after delivery. Any products not rejected within such five (5) day period shall be deemed accepted. Any discrepancy in quantity must be reported within five (5) business days following Buyer’s receipt of the Products.
5. Late Payments and Retention of Title. Terms of payment are as specified in the invoice. Any payments not made by Buyer to Gerard EMG, Inc when due shall bear interest at the rate of 2% per month calculated from the date on which such payment is due until payment is received by Gerard EMG, Inc in full. Property in the Products shall remain with Gerard EMG, Inc until it has received payment in full in accordance with these Terms and Conditions. Representatives of Gerard EMG, Inc shall be entitled to access any premises upon which the Products are located at anytime to regain possession of the Products should the Buyer fail to pay for the Products in accordance with these Terms and Conditions. All che are accepted subject to collection. Acceptance of any partial payment shall not constitute waiver of Gerard EMG, Inc’s right to payment in full of all amounts owing form Buyer to Gerard EMG, Inc.
6. Taxes and Fees. Buyer shall be responsible for all tariffs, taxes, duties and fees assessed in connection with Buyer’s purchase of the Products, including but not limited to any applicable sales taxes, excise taxes, customs duties, freight charges and bank fees levied or imposed on the Products or Buyer’s purchase of the Products (except taxes based upon Gerard EMG, Inc’s net income) and Buyer shall carry out any customs procedures imposed by any governmental authority with respect to the Products (except procedures imposed by the United States Government). In the event Gerard EMG, Inc is required to or does pay any such taxes, fees or duties, Buyer shall within 30 days of receipt of proof of such payment, repay the amount thereof to Gerard EMG, Inc.
7. Disclaimer of Warranties. GERARD EMG, INC HEREBY DISCLAIMS, AND BUYER WAIVES, ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY OPERATION OF LAW, COURSE OF PERFORMANCE COURSE OF DEALING, USAGE OR TRADE, AS TO THE CONDITION, DESIGN, OPERATION, MERCHANT ABILITY. QUALITY OF THE MATERIAL OR WORKMANSHIP, OR THE FITNESS OF THE PRODUCTS FOR BUYER’S USE FOR A PARTICULAR PURPOSE OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER NOT CONTAINED HERE IN. The parties acknowledge that Gerard EMG, Inc is acting solely as a third party distributor of the goods covered by this invoice and that the manufacturer of goods shall be solely responsible to Gerard EMG, Inc and third parties for liability, claims damage obligations and costs and expenses related to the goods distributed by Gerard EMG, Inc. Any warranty, delivered to Gerard EMG, Inc by manufacturer or other vendor thereof shall be assigned to the Buyer to the extent such assignment is permitted by the terms there of Gerard EMG, Inc makes no representation, covenant or warranty with respect of the enforceability of the manufacturers warranty. Gerard EMG, Inc neither assumes nor authorizes Buyer of any other person to assume on behalf of Gerard EMG, Inc any other liabilities in connection with the sale of goods.
8. Limitation of Liability. In the event any of the Products do not conform to their manufacturer’s specifications Gerard EMG, Inc shall, at its sole option, either (1) credit Buyer’s account; or (2) replace without charge to buyer all Products which at time of delivery do not conform to their manufacturer’s specifications, provided however, that Buyer returns all such Products to Gerard EMG, Inc within fifteen (15) days from the date of delivery in accordance with the provisions hereof and that such Products are in their original packages and in good condition, without any of their serial numbers altered, defaced or removed and are accompanied by a detailed written description of the manner in which such Products are defective. Buyer shall give prior notice to Gerard EMG, Inc in each instance in which Buyer intends to return any of the Products which Buyer believes to be defective, and Gerard EMG, Inc (or Gerard EMG, Inc’s authorized representative) shall be entitled to examine such Products at Buyers facilities prior to return. GERARD EMG, INC’S SOLE LIABILITY TO BUYER, AND BUYER’S SOLE AND EXCLUSIVE REMEDIES AGAINST GERARD EMG, INC SHALL BE AS STATED IN THESE TERMS AND CONDITIONS, AND IN NO EVENT SHALL GERARD EMG, INC BE LIABLE TO BUYER FOR ANY (1) MONETARY DAMAGES WHATSOEVER: (2) DAMAGES OR LOSSES DUE TO DELAYS IN DELIVERY; (3) INTERRUPTION OF USE OR BUSINESS; (4) LOSS OF PROFITS; OR (5) OTHER CONSEQUENTIAL OR INCIDENTAL DAMAGES. The Products are not authorized to be used in life support equipment or for applications in which the failure or malfunction of the Products would create a situation in which personal injury or death is likely to occur. Any such use by Buyer, or sales or Products by Gerard EMG, Inc, is at the sole risk of Buyer, and Buyer agrees to indemnify and defend Gerard EMG, Inc against and hold Gerard EMG, Inc harmless for all damages, costs and expenses including without limitation solicitor’s fees and costs relating to any lawsuit or threatened lawsuit, arising out of such sale.
9. Export. Buyer acknowledges that some of the Products are licensed by the United States Government for an ultimate destination within Australia and may not be re-exported by the Buyer or any third party without prior written authorization of Gerard EMG, Inc.
10. Governing Law, Disputes. These Terms and Conditions and any agreement between Gerard EMG, Inc and Buyer shall be governed, construed and interpreted in all respects in accordance with the laws for the time being in force in the state of California, USA.
11. Integration, Amendment and Assignment. These Terms and Conditions together with the invoice shall comprise the entire agreement between the parties relating to the Products and supersede all prior understandings, negotiations, agreements written or oral, express or implied in relation thereof and Buyer warrants that Gerard EMG, Inc has made no representations material to Buyer’s ordering of the Products and acknowledges that Gerard EMG, Inc is relying upon this warranty in supplying the Products to Buyer. These Terms and Conditions may be amended or modified only by a written instrument signed by both Gerard EMG, Inc and Buyer. The Buyer shall not assign any of its rights or obligations under this agreement without Gerard EMG, Inc’s written consent. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any term used in this invoice. No agent, employee or representative of Gerard EMG, Inc has any authority to bind Gerard EMG, Inc to any affirmation, representation or warranty covering the Products and unless an affirmation, representation or warranty made by an agent, employee or representative is specifically included with this agreement, it has not formed a part of the agreement and shall not in any way be enforceable against Gerard EMG, Inc.
12. Waiver. Failure by Gerard EMG, Inc to enforce any rights here under shall not constitute a waiver of those or any other rights. All waivers must be in writing and signed by Gerard EMG, Inc.
13. Severability. In the event that any provision of these Terms and Conditions conflicts with the law under which these Terms and Conditions are to be construed, or if any such provision is held invalid by a court with jurisdiction over the parties hereto, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions contained herein accordance with applicable law, and the remainder of these Terms and Conditions shall remain in full force and effect.
14. Mediation. Prior to any litigation being filed by any of the parties to this Agreement, the parties shall agree to participate in a mediation for no less than four hours during which they shall attempt to resolve their dispute in good faith. The parties further agree to share equally in paying for the services provided by the Mediator.