1. ACCEPTANCE
The terms and conditions contained herein apply to all purchase orders entered by Alternative Supplier Inc (ASI). Any additional, different, or conflicting terms or conditions on buyer's purchase order, specifications, or other documents issued by buyer shall be wholly inapplicable and shall not be binding in any way on ASI. Acceptance of buyer's offer is expressly made conditional on buyer's assent to the terms and conditions contained herein. No waiver or amendment of any of the provisions contained in these terms and conditions shall be binding on ASI unless made in a writing expressly stating that it is such a waiver or amendment and signed by an officer of ASI.
2. PRICES
The prices for products and services covered hereunder shall be those agreed upon between the parties; provided, however, that if such prices are based on the purchase of a particular quantity of products and Buyer fails to purchase such quantity of products, ASI shall have the right (in addition to any other remedies available at law) to collect from Buyer the difference between the price paid by Buyer for the products purchased and the price for such products commensurate with the quantity actually purchased by Buyer. In addition, ASI reserves the right to require a minimum order amount, typically $50, and if Buyer fails to purchase the minimum order amount, ASI reserves the right to reject or assess a surcharge for such order. Unless otherwise agreed upon between the parties, the prices stated herein do not include any taxes or customs duties. Buyer shall pay, in addition to the prices stated, the amount of any present or future taxes and/or customs duties and/or broker fees applicable to the sale of products or performance of services, or in lieu thereof, Buyer shall supply ASI with an appropriate tax exemption certificate.
3. TERMS OF PAYMENT
(a) All payments are due at time of purchase provided that all online orders are payable in advance by valid credit card or other payment permitted online by ASI. All non-online orders shall be paid in cash, commercial check, PayPal, or credit card then accepted by ASI. All amounts past due shall incur interest at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by law, whichever is less. All payments shall be made to ASI at the address specified on the front of the invoice. If products or services covered by these terms and conditions are not delivered or performed at one time, Buyer shall pay for the quantity of products delivered or services performed. Each shipment shall be considered a separate and independent transaction. (b) All shipments, deliveries, and performance of work by ASI shall always be subject to the credit approval of ASI. As part of this credit approval, ASI may at any time decline to make any shipments or deliveries, perform any work, and/or impose such other terms or conditions or security arrangements as ASI, in its sole discretion, deems appropriate. (c) ASI reserves and Buyer hereby grants ASI a security interest in any products sold to the extent of the invoiced amount. If Buyer defaults under any obligation hereunder, Buyer agrees to make products available so that ASI can repossess them without a breach of the peace. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement. Upon ASI 's request, Buyer will execute any documents to perfect ASI 's security interest in any products. ASI, in its sole discretion, may suspend open account terms on all past due accounts and subsequent orders may be held until the account is paid current. A Fifty Dollar ($50) handling charge will be assessed on all returned checks.
4. TITLE AND DELIVERY
(a) All shipments by ASI are F.O.B. ASI 's facility, or, if applicable, ASI 's subcontractor's facility. Title and risk of loss or damage to products shall pass to Buyer upon delivery to the common carrier at ASI 's facility, or, if applicable, ASI 's subcontractor's facility. Buyer shall pay for insurance on all shipments based on shipment value unless Buyer notifies ASI in writing prior to shipment. (b) Buyer acknowledges and agrees that the delivery dates are estimates only and may be changed. ASI will use commercially reasonable efforts to deliver in accordance with the delivery dates, however, ASI will not be liable for failure to deliver as estimated. (c) In the event that ASI 's ability to supply products becomes constrained, for any reason whatsoever, ASI may reduce quantities, delay shipments, or allocate products among its customers at its discretion. (d) Buyer may not cancel, push-out, or reschedule any purchase order placed with ASI without ASI prior written approval.
5. ACCEPTANCE AND WARRANTY
(a) Any product sold or provided by ASI shall be deemed accepted by Buyer upon delivery. For a period of one year, unless a different warranty period is stated in any of ASI published documents, from the date of invoice, ASI warrants to Buyer that products delivered hereunder shall comply with the applicable ASI Data Sheet, MSDS, User Manual or the mutually agreed upon specifications and shall be free from defects in material and workmanship under normal use and service. Products which are "samples", "design verification units", and/or "prototypes" are sold "AS IS," "WITH ALL FAULTS," and with no warranty whatsoever. (b) If, during the applicable warranty period, (i) ASI is notified promptly in writing upon discovery of any defect in the products, including a detailed description of such defect; (ii) such products are returned to ASI facility (DDP: Delivered Duty Paid) accompanied by ASI 's Returned Material Authorization form; and (iii) ASI examination of such products discloses to ASI 's satisfaction that such products are defective and such defects are not caused by accident, abuse, misuse, neglect, alteration, improper installation, repair, improper testing, or use contrary to any instructions issued by ASI , ASI shall, at its sole option, either repair, replace, or credit Buyer the purchase price of such products. No products may be returned to ASI without ASI 's Returned Material Authorization form. Prior to any return of products by Buyer pursuant to this Section 5, Buyer shall afford ASI, or its authorized representative, the opportunity to inspect such products at Buyer's location. (c) The performance of this warranty does not extend the warranty period for any products beyond that period applicable to the products originally delivered. (d) the foregoing warranty constitutes ASI 's exclusive liability, and the exclusive remedy of buyer, and for any breach of any warranty or other nonconformity of the products covered by these terms and conditions. this warranty is exclusive, and in lieu of all other warranties. ASI makes no other warranties, express, implied, or statutory, including without limitation any warranties of merchantability, fitness for a particular purpose, or non-infringement. the sole and exclusive remedy for any breach of this warranty shall be as expressly provided in this section 5. (e) in no event will ASI be liable for any costs associated with the replacement or repair of product, including labor, installation, or other costs incurred by buyer and any costs relating to the removal or replacement of any product.
6. RETURN POLICY
(a) All products intended for return must be purchased from ASI. Return of products will be considered based on the following conditions: (a) All product returns must be pre-authorized by ASI with a return merchandise authorization (RMA) number. To obtain an RMA number call ASI customer service at (719) 331-8186 or send email through Contact Us on the ASI website. Return shipments without an RMA number may be rejected in ASI's sole discretion. (b) Returns of defective products will be paid for by ASI when ASI authorized carriers are used. Return shipment charges via unauthorized carriers and all customs or broker’s fees are the responsibility of Buyer. ASI reserves the right to charge-back to Buyer shipping charges incurred on those products which were returned as defective, and no fault is found. Under no circumstances shall the total defective returns of any specific product exceed the total purchases for that product in the 90 calendar days prior to the return request. (c) Upon written approval by ASI, Buyer may return current, undamaged products which are unopened and in their original packaging to ASI for full credit, less any discounts, marketing considerations or credits previously received, and less a minimum 15% restocking fee. Under no circumstances shall ASI authorize a return of a product that was purchased by Buyer more than 90 calendar days prior to the return request. All freight charges for non-defective and pre-approved product returns shall be the responsibility of Buyer. A non-defective and pre-approved product return that is not returned in its original packaging and in saleable condition, in ASI sole discretion, shall be returned to Buyer at Buyer’s expense.
7. INTELLECTUAL PROPERTY
(a) ASI shall, at its own expense, defend, or at its option, settle any suit that may be instituted against Buyer for any alleged infringement of any United States patent, trademark, or copyright related to products covered by these terms and conditions (except products covered by Section 7(d) below), provided that, (i) such alleged infringement does not arise from the use of such products as a part of or in combination with any other devices or parts or from ASI compliance with instructions issued by Buyer; (ii) Buyer gives ASI immediate notice in writing of any such suit and permits ASI , through counsel of ASI 's choice, to answer the charge of infringement and defend or settle such suit; and (iii) Buyer gives ASI all needed information, assistance and authority, at ASI 's expense, to enable ASI to defend such suit. In the case of a final award of damages in any such suit, ASI shall pay such award, but shall not be responsible for any settlement made without its prior written consent. ASI will not settle any such suit without the consent of Buyer unless such settlement requires no payment by Buyer or admission of liability of Buyer. (b) In satisfaction of Section 7(a), ASI, at its sole discretion, may (i) replace or modify products with non-infringing products that are functionally equivalent; (ii) obtain a license for Buyer to continue to use or sell products; or (iii) accept the return of products and refund the amount paid by the Buyer for such returned products. (e) this section 7 states ASI total responsibility and liability and buyer's sole remedy, for any actual or alleged infringement of any patent, trademark, or copyright by any products or services delivered hereunder, or any part thereof, this section 7 is in lieu of and replaces any other expressed, implied, or statutory warranty against infringement. in no event shall ASI be liable for any consequential, incidental, indirect, exemplary, special, or other damages resulting from any such infringement. ASI is not obligated to defend or settle any suit based on alleged infringement outside of the United States of America. (d) Buyer shall, at its own expense, indemnify and hold ASI harmless from and against any liabilities, costs, damages, or losses resulting from any alleged infringement of any patent, trademark or copyright arising as a result of ASI 's compliance with any of Buyer's designs, specifications, or instructions, and shall defend at its own expense, including attorney's fees, any suit brought against ASI alleging any such infringement, including infringement arising out of the use of such products as part of or in combination with another device or from ASI 's compliance with instructions from Buyer provided that ASI , (i) gives Buyer immediate notice of any such suit and permits Buyer, through counsel of its choice, to defend such suit; and (ii) gives Buyer all needed information, assistance and authority, at Buyer's expense, necessary for Buyer to defend any such suit.
8. BREACH
Anyone of the following acts by Buyer shall constitute a material breach of Buyer's obligations hereunder: (a) Buyer fails to make payment for any products or services when due; (b) Buyer fails to accept conforming products or services supplied hereunder; or (c) filing of a voluntary or involuntary petition in bankruptcy against Buyer, the institution of any proceeding in insolvency or bankruptcy (including reorganization) against Buyer, or an assignment for the benefit of creditors of Buyer. In the event of Buyer's material breach, ASI may (in addition to any other rights or remedies provided herein or at law or in equity), by written notice to Buyer, terminate its obligations or any part thereof, without any liability to ASI. Buyer shall pay all costs, including reasonable attorney's fees, incurred by ASI in any action brought by ASI to collect payments owing or otherwise enforce its rights.
9. FORCE MAJEURE
ASI shall not be liable hereunder due to any cause beyond its control, including but not limited to acts of God, acts of civil or military authority, fires, epidemics, floods, riots, wars, sabotage, labor disputes, yield problems, governmental actions, or inability to obtain materials, components, energy, manufacturing facilities, or transportation. In the event of any such delay, the date of delivery or performance hereunder shall be extended by a reasonable period and ASI shall not be liable for any such delay.
10. LIMITATION OF LIABILITY
(a) notwithstanding anything to the contrary contained herein, ASI shall not, under any circumstances, be liable to buyer or any third parties for consequential, incidental, indirect, exemplary, special, or other damages whether in an action based on contract, tort, or any other legal theory, arising out of or related to the transaction contemplated hereunder, including but not limited to lost profits or loss of business, even if ASI is apprised of the likelihood of such damages occurring. (b) under no circumstances shall ASI total liability of all kinds arising out of or related to the transaction contemplated hereunder (including but not limited to any warranty claims), regardless of the forum and regardless of whether any action or claim is based on contract, tort or otherwise, exceed the total amount paid by buyer to ASI hereunder for the products or services actually giving rise to such liability (determined as of the date of any final judgment in such action). this limitation is cumulative, with all payments to buyer for claims or damages being aggregated to determine satisfaction of the limit. the existence of one or more claims will not enlarge the limit. (c) it is expressly understood and agreed that each provision of these terms and conditions which provides for a limitation of liability, disclaimer of warranties or exclusion of damages is intended by the parties to be severable and independent of any other provision and to be enforced as such. (d) notwithstanding any provision herein to the contrary, ASI shall not under any circumstances be liable for excess costs of re-procurement.
11. PUBLICITY
Buyer will not use or permit to be used any trademark, service mark, or trade name owned by ASI or any of its subsidiaries, divisions, or affiliates without prior written consent of its expressly authorized representative. Should consent be given, all use for which consent was obtained shall cease upon the terms set forth in the consent, but not later than the time that Buyer ceases selling products using ASI products.
12. ASSIGNMENT
No party shall transfer or assign any or all its rights or interests hereunder without the prior written consent of the other party except in connection with a sale of substantially all its assets.
13. NOTICES
Any notice required or permitted to be given under these terms and conditions shall be sufficient if in writing, sent by e-mail with a confirmation copy via facsimile or by US first class mail or overnight delivery, in each case to the respective e-mail address and physical address listed on the face of this document or as provided by a party to the other party in writing.
14. GENERAL
(a) ASI shall retain title to and possession of all tooling and tooling designs of any kind used in the manufacture or testing of products furnished hereunder. (b) Buyer acknowledges that all or part of the products may be manufactured, assembled, or otherwise worked on at any of ASI 's or its subcontractors' facilities, domestic and foreign. (c) During this business relationship, ASI will use Buyer data only in accordance with ASI Privacy Policy, as modified by any executed non-disclosure agreement between the parties. ASI is the owner of any intellectual property produced by it and no licenses are granted except as provided in any special supplement delivered with a specific product. (d) ASI and Buyer agree that they shall comply with all applicable laws, regulations, and administrative rules. Without limiting the generality of the foregoing, Buyer represents itself to be knowledgeable as to United States and other relevant laws, regulations, and requirements regarding the export of products, whether tangible or intangible, from the United States of America and the re-export of products once outside the United States of America and agrees to conduct its activities in accordance with United States export regulations as well with other relevant export regulations. ASI may suspend performance if Buyer is in violation of applicable export regulations (e) No government procurement requirements or regulations shall be binding upon ASI unless specifically agreed to by ASI in writing. (f) Buyer may not assign its rights or delegate its obligations hereunder without the prior written consent of ASI and any purported assignment or delegation without such consent shall be of no force or effect. In addition, Buyer may not assign its rights or delegate its obligations to any entity controlled by, controlling or under common control with Buyer or in connection with Buyer's merger or the transfer or sale of all or substantially all of Buyer's assets or stock without the prior written consent of ASI and any purported assignment or delegation without such consent shall be of no force or effect. (g) Any waiver by ASI of any default by Buyer shall not be deemed to be a continuing waiver of such default or a waiver of any other default or of any of the terms and conditions hereunder. (h) These terms and conditions may not be superseded, modified, or amended except in a writing stating that it is such a modification and signed by an officer of each party. If any of the provisions of this Agreement are determined to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect. (i) These terms and conditions, which include the documents incorporated by reference on the face hereof (but expressly does not include any of the terms and conditions of Buyer's purchase order, specifications or any similar document issued by Buyer) shall constitute (except for any Non-Disclosure Agreement) the entire agreement between Buyer and ASI with regard to the products or services sold hereunder, and expressly supersedes and replaces any prior or contemporaneous agreements, written or oral, relating to such products or services. (j) The validity, performance and construction of these terms and conditions, and any disputes arising from or relating thereto, shall be governed by the laws of the State of Colorado. All disputes shall be subject to the exclusive jurisdiction of the Colorado state courts of El Paso County, Colorado (or, if there is exclusive federal jurisdiction, the United States District Court for the District of Colorado), and Buyer consents to the personal and exclusive jurisdiction and venue of these courts. The United Nations Convention on the Sale of Goods, Uniform Commercial Code, Uniform Computer Information Transaction Act, and INCOTERMS shall not apply to these terms and conditions except where expressly referenced.
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