CUE TECHNOLOGIES, INC. (DBA CUETECH) TERMS AND CONDITIONS

STANDARD TERMS AND CONDITIONS OF SALE

 

All sales by CUE Technologies, Inc. (dba CUETECH) ("Seller") are subject to the following conditions in addition to those on the face hereof:

1) Seller warrants to Buyer that for a period of 30 days (unless otherwise stated on the face of this invoice) following the delivery of product to Buyer, the Products will be free from defects in material and workmanship and will function in substantial compliance with the manufacturer’s written specifications thereof.  Buyer’s exclusive remedy shall, in any case, be limited, at the Seller’s election, to: A) Repair or replacement of the defective products; B) Refund of the purchase price thereof of C) Crediting of the same against future purchases by Buyer.  THE FOREGOING WARRANTY IS THE ONLY WARRANTY MADE BY SELLER WITH RESPECT TO THE PRODUCTS.  THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND BY THE SELLER, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONDITION OR PERFORMANCE OF THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, THEIR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

2) IN NO EVENT WILL SELLER BE LIABLE FOR ANY LOST PROFITS OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME.

3) Buyer represents and warrants that it has not provided any traceability requirements to CUETECH and that it has not been provided with any traceability requirements by its Customer.

4) All products shall be deemed and presumed to be acceptable to Buyer and in full compliance with the warranties made herein unless, within 30 days from the date of delivery, Buyer shall have notified Seller in writing to the contrary.  Buyer represents and warrants that it either possesses the necessary testing equipment to perform adequate testing of the products purchased from Seller to confirm the products’ authenticity or Buyer has utilized the services of a certified third party to do the same. In the event of shipping discrepancies and/or receipt of defective/damaged products, Buyer shall notify CUETECH within three (3) business days of receipt of such products. Failure to notify CUETECH within such time shall be deemed an acceptance of the products on the date of shipment.  All claims and returns must, moreover, be submitted to Seller’s facility using this invoice.  All returns must be authorized in advance by Seller or on Seller’s Standard return authorization form.  Seller will not accept any returns without either a certified engineer or testing laboratory report identifying the defective goods.

5) All Products shall be shipped F.O.B. Carrier and shall, except for any claim or lien, Seller returns for non-payment or other breach of terms, become the property of Buyer upon delivery to the carrier.  Buyer shall assume all risk and liability for loss, damage or destruction after delivery to carrier and for the reasons the products are defective.

6) Title to the Products shall pass to Buyer upon delivery to the carrier.  Buyer agrees, however, that Seller shall retain a purchase money security interest in all Products and to any proceeds thereof, until the purchase price and any other charges due to Seller shall have been paid in full.  Buyer agrees to execute any financing statement or other documents as Seller may request in order to perfect Seller’s security interest.  Upon any default by Buyer hereunder, Seller shall have all rights and remedies of a secured party under the California Commercial Code, which rights and remedies shall be cumulative and not exclusive.

7) Unless otherwise specified in the quotation/invoice, the prices shown do not include any taxes, import or export duties, tariffs or custom charges. Buyer agrees to pay CUETECH the amount of any federal, state, county, municipal, or other taxes, duties, tariffs or custom charges levied by any jurisdiction foreign or domestic which CUETECH may be required to pay on account of ownership at the place of installation or during transit of the material or equipment which is the subject of this contract, or on account of the transportation, sale, or use of said material or equipment.

8) Seller makes no representation concerning patents, trademarks, trade names or service marks (collectively "Patents") of any of its Products.  Seller’s obligation for Patent infringement is expressly limited to any indemnification which Seller’s vendor of the Products has agreed in writing to provide (or by operation of law has been deemed to provide) to Seller.

9) Buyer shall be responsible for all reasonable costs and expenses incurred by Seller in collection of any sums owing by Buyer or in Seller’s enforcement of any provision of this Agreement and Seller shall not be obligated to make any further deliveries to Buyer.  Such reasonable costs and expenses shall include, but not be limited to, reasonable attorney’s fees.

10) Seller shall not be liable for any failure or delay in the performance of order or contracts or in the delivery or shipment of Products or for any damages suffered by Buyer by reason of such failure or delay, when such failure or delay is, directly or indirectly, caused by, or in any manner arises from fires, floods, accidents, riots, acts of God, war, governmental interference of embargoes, strikes, labor difficulties, shortage of labor, fuel, power, material or supplies, transportation delays, delays in deliveries by Seller’s vendors or any other cause or causes (whether or not similar in nature to any of those herein specified) beyond Seller’s control.

11) Enforcement of this Agreement shall be governed by the laws of the State of California.  Any court action or proceeding of any nature whatsoever, in law or equity, for damages otherwise, related thereto shall be instituted only in the courts of the County of Orange in the State of California and only such courts shall have jurisdiction of any such action or proceeding.  By acceptance of the Products, Buyer irrevocably consents to the personal jurisdiction of such courts in connection with any such action or proceeding. The United Nations Convention on Contracts for the International Sale of Goods (“CISG”) shall not apply. In the event any applicable contract or agreement is executed in more than one language version, the English language version shall control.

12) Before any court action or any proceeding is filed by either party involved in this transaction, the parties will participate in a mandatory mediation which will last a minimum of four hours.

13) This Invoice and the Terms and Conditions set forth herein constitute the Agreement between Seller and Buyer.  If the terms and conditions of this Agreement differ in any way from the terms and conditions of Buyer’s purchase order or any other document submitted by Buyer, this Agreement will be not construed as a "counteroffer" and any terms and conditions set forth in Buyer’s Purchase Order which conflict with the terms and conditions set forth herein will have no force and effect.  Buyer’s acceptance of the Products shall be conclusive presumption that Buyer has accepted all of the terms and conditions of this Agreement.  No addition to or modification of any of these terms will be effective unless made in writing and signed by Seller and Buyer.

14) If any dispute arises out of this agreement, and a lawsuit is filed, the prevailing party will be entitled to recover their reasonable attorneys’ fees and costs.

15) Return Policy:

1. Products to be returned must have CUETECH’s Return Authorization Number (RMA)

2.  All returns are subject to a 25% restocking fee plus shipping, unless the products were shipped incorrectly and/or received defective/damaged.

3.   RMA number is good for seven (7) days only. Buyer must allow for in-transit time for products to be returned to CUETECH, as CUETECH must physically receive the products within the seven (7) calendar days.

4.   Shipping charges are not refundable.

5.   Any opened software will not be accepted under any circumstances

6.   CUETECH will not accept products for return that have been physically damaged, burned, abused, misused, neglected, repaired or modified.

7.   If the product being returned is allegedly defective, but is found by CUETECH not to be defective, Buyer will be charged a 25% testing fee, and the product will be shipped back at the Buyer’s expense.

8.   All accessories must be shipped with the returned item. Items returned without the accessories will be rejected and returned to the Buyer at the Buyer’s expense.

 

 STANDARD TERMS AND CONDITIONS OF PURCHASING

 

1) All parts must be new and unused, unless otherwise specified.

2) Supplier acknowledges that all orders are placed with the understanding that time is of the essence.

3) Any late or short shipments are cause for cancellation by CUE Technologies, Inc. (“CUETECH”) without CUETECH incurring any additional costs or obligations.

4) Notice must be provided within ten days after receipt of this purchase order that you are unable to supply the complete order by the date specified.  Failure to provide notice within that time will cause you to be subject to any and all damages suffered by CUETECH due to its failure to receive the ordered parts in a timely fashion.

5) For imported products, Pro Forma Invoice and Commercial Invoice on the package must be identical, showing true value of the products for clearance in customs.

6) CUETECH will reject any parcels that do not comply with United States Customs Codes.

7) The Courts of the County of Orange, State of California, will have exclusive jurisdiction and venue of any dispute that arises out of or relating to this purchase order.

8) California law will govern any dispute that arises out of or relates to this purchase order. The United Nations Convention on Contracts for the International Sale of Goods (“CISG”) shall not apply. In the event any applicable contract or agreement is executed in more than one language version, the English language version shall control.

9) Before any legal action is filed concerning this purchase order, you and Cuetech agree to participate in a mediation before a neutral mediator that will last a minimum of four hours unless the matter is resolved in less than that amount of time.

10) If any dispute arises out of this agreement, and a lawsuit is filed, the prevailing party will be entitled to recover their reasonable attorneys’ fees and costs.

11) Counterfeit parts have no value.  For example, any Limitation of Warranties provision contained in the Supplier's Terms and Conditions will be declared null and void if it is later determined that counterfeit parts or suspect counterfeit parts were received by CUETECH from its supplier.

12) Supplier and CUETECH or a testing laboratory chosen by CUETECH determines that the good supplied are suspect counterfeit or counterfeit, then the Supplier has the right to: 1. Agree with CUETECH's findings and the transaction will be voided; or 2. Verify CUETECH's findings by contracting with a CUETECH approved and Supplier recognized test laboratory (hereafter referred to as "lab") for further verification. 

13) If Supplier accepts CUETECH’s findings and chooses to immediately void the transaction, the suspect goods will not be returned to Supplier unless and/or until an independent lab agreed to by both Supplier and CUETECH determines that the goods are not suspect counterfeit or counterfeit.  Under these circumstances, CUETECH shall retain possession of the suspect goods for a time period at least as long as the applicable statute of limitations under the appropriate Authority(ies) Having Jurisdiction following the date upon which Supplier received notification from CUETECH that it was choosing to immediately void the transaction between them. Once this period has expired, then CUETECH shall have the absolute right to destroy the suspect goods. If Supplier exercises its right to have an independent lab determine whether the suspect goods are counterfeit and the lab verifies the findings that the subject goods are either suspect counterfeit or counterfeit, then Supplier must issue an immediate refund of all monies paid by CUETECH. CUETECH and Supplier agree that whether or not Supplier refunds all monies paid by CUETECH, CUETECH shall have the absolute right to reacquire possession of the subject goods from the lab in order to prevent the subject goods from being offered for sale through any channels of distribution. In the event that Supplier pursues its Supplier, either in civil or criminal proceedings, Supplier shall have the right upon request to receive and use a mutually agreeable sample quantity of the parts sold for the purpose of pursuing its remedies. Upon completion of testing, the samples will be returned to Supplier who will then return them to CUETECH. CUETECH and Supplier agree that CUETECH shall have the right to destroy the suspect goods after expiration of the applicable statute of limitations under the appropriate Authority(ies) Having Jurisdiction. Notwithstanding the above, if CUETECH and Supplier agree in writing that the parts can be immediately destroyed, the parts will be destroyed per their agreement so long as all civil or criminal actions, in which the suspect electronic parts are the subject of the action, have been completed.

14) Supplier shall indemnify, defend and hold harmless CUETECH and CUETECH’s officers, directors, shareholders, employees, agents and representatives (collectively, “CUETECH’s Indemnitees”), from and against: (1) claims, losses, expenses, costs, liabilities, suits, demands, actions or proceedings incurred or suffered by CUETECH’s Indemnitees, or any one of them, arising out of or relating any claims made by any third parties relating to or concerning the goods sold by Supplier to CUETECH and (2) all costs and expenses, including but not limited to reasonable attorneys’ fees and costs, related to any actions, suits or judgments incident to any of the above. CUETECH’s Indemnitees, or any one of them, shall notify Seller of any claim for indemnification within thirty (30) days after such individual or entity has actual notice of such claim, but failure to notify Seller shall in no case prejudice the rights of CUETECH’s Indemnitees under this section. The indemnification obligations of Seller under this section shall survive for a period of four (4) years following the Effective Date.

15) Supplier agrees and acknowledges that the attached terms and conditions are made part of and incorporated into CUETECH’s Purchase Order.

 

 

 

 

 

 

 

 

 

 

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