FUTABA CORPORATION OF AMERICA
- Acceptance. All sales of goods are subject to and expressly limited to, the Terms of Sale (the “Terms”) stated herein. All different or additional terms and conditions proposed by Buyer, including those which may appear in Buyer’s purchase order, shipping order, or any other form or writing from Buyer, or by any written or oral statement by any sales representative, agent, distributor, or unauthorized employee of Seller are expressly rejected and shall be of no force or effect. Seller hereby notifies Buyer of Seller’s objection to any additional and/or different terms, unless and to the extent Seller has expressly agreed to any such additional and/or different terms in a duly executed writing by an authorized employee of Seller. These Terms constitute the entire agreement between Seller and Buyer unless expressly agreed to in a writing duly executed by Seller and Buyer. Acceptance by Buyer of goods covered hereunder or Buyer’s failure to respond to these Terms with a proposed written addendum which specifically references Buyer’s order and Seller’s acknowledgment within seven (7) days of the date of Seller’s acknowledgment, shall be deemed Buyer’s agreement to these Terms.
- Specifications. Specifications applicable to goods sold hereunder shall be limited solely to those furnished by Seller or expressly agreed to in writing by Seller.
- Changes. Seller reserves the right to make product and design changes in goods ordered which will not adversely affect agreed specifications, form, fit, or function requirements, with notification to or price approval by Buyer. All changes requested by Buyer in the process or design of goods are subject to written approval by Seller and to reasonable changes in delivery and price as Seller determines is necessitated thereby.
- Limited Warranty. SELLER WARRANTS ONLY THAT ALL GOODS SOLD HEREUNDER SHALL BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP UNDER NORMAL CONDITIONS OF USE AND SERVICE FOR A PERIOD OF ONE (1) YEAR FROM THE DATE OF SALE TO THE PURCHASER WHO IS THE FIRST BUYER OF THE GOODS FOR USE OR CONSUMPTION AND NOT FOR RESALE OTHER THAN AS A COMPONENT OF ANOTHER PRODUCT MANUFACTURED FOR SALE BY SUCH PURCHASER (“CONSUMER”). SELLER’S SOLE LIABILITY, WITHER BASED ON BREACH OF WARRANTY, NEGLIGENCE OR OTHERWISE (AND BUYER’S OR CONSUMER’S EXCLUSIVE REMEDY) HEREUNDER IS EXPRESSLY LIMITED, AT SELLER’S ELECTION: (A) TO THE REPLACEMENT, AT THE AGREED POINT OF DELIVERY, OF ANY SUCH NONCONFORMING GOODS, (B) TO THE REPAIR OF SUCH GOODS, OR (C) TO A CREDIT FOR THE NET PURCHASE PRICE OF SUCH GOODS. ALL CLAIMS HEREUNDER MUST BE MADE IN WRITING DURING THE WARRANTY PERIOD, AND SELLER SHALL HAVE THE RIGHT PRIOR TO ANY RETURN OF GOODS TO INSPECT ANY GOODS CLAIMED TO BE IN NON-CONFORMING OR IN BREACH OF THIS WARRANTY, AND IN ANY EVENT RESERVES THE RIGHT TO REJECT CLAIMS NOT COVERED BY WARRANTY. SELLER MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER’S WARRANTY SHALL NOT APPLY TO ANY GOODS SOLD HEREUNDER IF, AMONG OTHER LIMITATIONS CONTAINED HEREIN OR FURNISHED WITH THE GOODS, BUYER OR ANY USER OF THE GOODS (A) ALTERS SUCH GOODS, OR (B) REPLACES ANY PART OF SUCH GOODS WITH ANY PART OR PARTS NOT FURNISHED BY SELLER FOR THAT PURPOSE, OR IF, AMONG SUCH OTHER LIMITATIONS, THE GOODS FAIL TO OPERATE PROPERLY OR ARE DAMAGED DUE TO ATTACHMENTS OR COMPONENTS THAT ARE NOT FURNISHED FOR USE WITH OR REPAIR OF THE GOODS BY SELLER UNLESS SUCH USE IS AUTHORIZED IN WRITING IN ADVANCE BY SELLER. THIS LIMITED WARRANTY EXTENDS ONLY TO THE BUYER OR CONSUMER, IF OTHER THAN BUYER, AND IS NOT ASSIGNABLE OR TRANSFERRABLE. This limited warranty shall not apply to fuses, lamps, batteries, or other items which are expendable by nature, unless otherwise expressly provided. This limited warranty does not cover any defect or damage to any of the goods caused by or attributable to force, accident, misuse, abuse, faulty installation, improper maintenance, improper electrical current, failure to install or operate in accordance with Seller’s written instructions, repair or alteration by unauthorized persons, or leaking batteries. THE GOODS ARE SENSITIVE ELECTRONIC DEVICES REQUIRING SPECIAL HANDLING, AND THIS LIMITED WARRANTY DOES NOT APPLY TO PRODUCTS NOT HANDLED IN ACCORDANCE WITH SELLER’S INSTRUCTIONS. THIS LIMITED WARRANTY DOES NOT COVER ANY INDUSTRIAL RADIO CONTROL PRODUCT PURCHASED OR USED OUTSIDE OF THE UNITED STATES WITHOUT SELLER’S PRIOR WRITTEN APPROVAL.
- Returns. Seller’s authorization must be obtained prior to return of any item for repair or replacement or credit and shall be in accordance with Seller’s warranty service procedure. Buyer’s or Consumer’s rights to repair or replacement or credit are governed by the terms of Paragraph 4. Goods returned for warranty repair or replacement or credit must be carefully and securely packed for return, preferably in its original carton or equivalent. The Buyer or Consumer must include in the carton a legible copy of the bill of sale or invoice which shows the date of sale and the Buyer’s and, if applicable, the Consumer’s name and also a letter which gives the Buyer’s or, if applicable, the Consumer’s, return address and contact telephone number, the model and serial number of the goods returned, and a brief explanation of the claimed defect. Any returned goods which are replaced by Seller shall become the property of Seller. If, after inspection Seller determines the defect is not covered by its limited warranty, Seller will notify Buyer or, if applicable, the Consumer, of its determination and will not undertake any repairs or replacement until Buyer or Consumer agrees to pay for all necessary parts and materials, labor (to be charged at Seller’s standard repair rate then in effect), and other expenses including all shipping charges and insurance. Seller reserves the right to retain possession of any goods returned because of defects not covered by Seller’s warranty until Seller receives Buyer’s or Consumer’s agreement as above noted or, if Buyer or, if applicable, Consumer wants the goods returned without repair or replacement, reimburses Seller for all shipping and handling charges incurred by Seller. Issuance of credit for returned items shall be made at Seller’s unfettered discretion. Neither Buyer nor Consumer will be entitled to return defective goods for cash refunds. Buyer or, if applicable, Consumer must inspect goods immediately and no rejection or revocation of acceptance shall be permitted more than ten (10) days after delivery to Buyer or, if applicable, Consumer of the goods.
- Intellectual Property Rights. If any goods ordered by Buyer for its own use or for a Consumer are manufactured according to designs or processes specified by Buyer or Consumer, Buyer agrees to defend, indemnify and save Seller, and Seller’s affiliates, officers, agents and employees, harmless from any expense, loss, attorneys’ fees, costs, damages or liability which may be incurred as a result of actual or alleged infringement of patent, copyright or trademark rights, or any other third party intellectual property right. Sale of goods under these Terms does not convey a license, implied or otherwise, under any patent, copyright or trademark right, or any other intellectual property right, in which Seller has an interest, nor does it convey rights to trade secrets or any other proprietary information of Seller.
- Title; Risk of Loss. Title to and risk of loss of the goods shall pass to Buyer upon delivery at Seller’s location of the goods by Seller to common carrier or other means of transportation.
- Delivery. Delivery shall be Ex Works Seller’s location (INCOTERMS 2010). Freight charges may be added to invoice or billed separately. If not specified in Buyer’s purchase order, method of shipment shall be at Seller’s discretion. Buyer’s failure to furnish Seller with shipping instructions shall in no way alter the terms of payment of Seller’s invoice for any of the goods offered for delivery. Seller reserves the right to make partial shipments without liability or penalty. Each shipment hereunder shall constitute a separate sale, and Buyer shall pay for the goods shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. The goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order. Seller shall not be liable for any delays, loss or damage in transit, and failure to make deliveries on any mutually agreed upon date(s) shall not constitute cause for cancellation hereof by Buyer. Buyer agrees to accept delivery on the mutually agreed upon delivery date(s). Any deferred delivery request by Buyer shall be subject to Seller’s written approval. On any approved deferred delivery, Seller shall have the right to render invoice for the completed portion of the order and to warehouse all completed goods at Buyer’s expense and risk of loss. Furthermore, with regard to any uncompleted portion of the order, Seller reserves the right, at its option, to either make a cancellation charge on the same terms and conditions of payment as set forth in Paragraph 12 or to revise its prices and delivery schedules on the uncompleted portion to reflect its increased costs, delays and expenses.
- Assurances. Should the financial responsibility of Buyer at any time become unsatisfactory to Seller, Seller shall have the right to suspend performance of any order or require payment for any shipment hereunder in advance or require satisfactory security or other assurance satisfactory to Seller. If Buyer fails to furnish such assurance, or make payment in accordance with these Terms, or fails to comply with any provisions hereunder, Seller may, at its option, in addition to any other remedies, cancel any unshipped portion of this order, Buyer to remain liable for all unpaid amounts. Amounts not paid when due hereunder shall bear interest at the maximum rate of interest permitted by applicable law until paid in full. Buyer agrees to pay all collection costs and expenses, including reasonable attorneys’ fees incurred by Seller in collecting or attempting to collect such account. Seller shall have the right to credit toward the payment of any monies that may become due Seller hereunder any sums which may now or hereafter be owed to Buyer by Seller.
- Delays. If a specific shipping date is not agreed to in writing by Seller, Seller shall not be responsible for any delays in filling orders and shall not be liable for any loss or damages resulting from such delays. Whether or not Seller agrees to a specific shipping date, Seller shall not be liable for delay or failure to deliver due to wars, civil disturbances, strikes, lockout, riots, accidents, fires, floods, storms, acts of God, the inability to obtain necessary labor, energy, water, raw or finished materials or facilities, government priorities or allocations, delays in transportation or other causes beyond Seller’s control. If any such contingency occurs, Seller may allocate or suspend production and deliveries among its customers as Seller, in its sole discretion, shall determine.
- Tooling. The prices quoted herein do not convey right, title, interest in, or possession of any tools, equipment, electronic components, fixtures, software or any items required to fill this order and not sold and delivered with this order.
- Cancellation. No order once accepted by Seller may be canceled by Buyer without Seller’s written consent and then only upon payment to Seller of all losses and expenses, plus lost profits for the entire order. Seller may cancel this order without liability to Buyer if events beyond Seller’s reasonable control as specified in Paragraph 10 make it impossible to fulfill Buyer’s purchase order, Buyer to remain liable for unpaid amounts for goods shipped.
- Taxes. All present and future federal, state or local taxes applicable to the sale, use, manufacture or shipment of the goods covered hereby shall be in addition to the purchase price and shall be paid by Buyer to Seller, or in lieu thereof Buyer shall provide Seller with a tax exemption certificate acceptable to all applicable taxing authorities. These obligations shall survive Buyer’s payment.
- Waiver. The failure of Seller to insist in any one or more instances upon the performance of any of these Terms, or to exercise any right hereunder, shall not be construed as a waiver of any other terms or conditions herein nor of the future performance of any term or condition or the future exercise of any such rights. The failure of Seller to require strict performance of any provision shall not diminish Seller’s right thereafter to require strict performance of any provision.
- Clerical Errors. Clerical errors of Seller in any of the writings issued by Seller are subject to correction.
- Limitation of Damages and Action. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SELLER BE LIABLE TO BUYER, CONSUMER, OR ANY OTHER PERSON IN CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE, WARRANTY OR STRICT LIABILITY) FOR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES DIRECTLY OR INDIRECTLY RESULTING FROM OR IN CONNECTION WITH THIS ORDER, THESE TERMS AND CONDITIONS, AND/OR THE GOODS. IN FURTHERMORE, IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, ORDER, AND/OR THE GOODS EXCEED THE TOTAL AMOUNT PAID TO SELLER FOR THE GOODS SOLD HEREUNDER. Any action hereunder must be commenced within one (1) year of accrual of cause of action or be barred and forever waived.
- Governing Law. Any questions, issues or disputes (collectively, “Claims”) arising out of or in connection with these Terms, Buyer’s purchase order, and/or the goods shall be governed by and construed in accordance with the laws of the State of Illinois, without giving effect to its conflict of laws provisions. The exclusive forum for the resolution of any Claims shall be a state or federal court of competent jurisdiction located in Cook County, Illinois, U.S.A. Buyer hereby submits to the exclusive jurisdiction and venue of such court.