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7. Inspection and Rejection of Nonconforming Goods.
(a) Buyer shall inspect the Goods within two (2) days of receipt (“
Inspection Period
”). Buyer will be deemed to have accepted the Goods unless it notifies
Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by
Seller. “
Nonconforming Goods
” means only the following: (i) product shipped is different than identified in Buyer’s Acknowledgement; or (ii) product’s label
or packaging incorrectly identifies its contents. Notwithstanding the foregoing, for shipped Goods that require field installation, the “re-verification” terms
in the Acknowledgement shall apply and for custom installations, the inspection and verification shall take place at Buyer’s site immediately after the
installation is completed.
(b) Seller will only accept Nonconforming Goods that are returned under Seller’s Return Material Authorization procedures then in effect (“
RMA
”). Buyer
shall obtain a RMA number from Seller prior to returning any Nonconforming Goods and return the Nonconforming Goods prepaid and insured to Seller at
1820 South Myrtle Avenue, Monrovia, CA 91016 or to such other location as designated in writing by Seller for the examination to take place there. If Seller
reasonably verifies Buyer’s claim that the Goods are Nonconforming Goods and that the nonconformance did not developed by use from Buyer, Seller shall,
in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods pursuant
to the terms set forth herein. Notwithstanding the foregoing, the only remedy for Nonconforming Goods that are custom systems is repair (not refund or
replacement). No returns for Nonconforming Goods are allowed after thirty (30) days from the original shipping date.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 7(a) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods.
Except as provided under Section 7(a) and Section 14, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods
purchased under this Agreement to Seller.
8. Price.
(a) Buyer shall purchase the Goods from Seller at the prices (the “
Prices
”) set forth in Seller’s published catalogue literature in force as of the date of the
Sales Quotation. However, the Prices shown in such catalogue literature or any other publication are subject to change without notice. Unless specifically
stated to the contrary in the Sales Quotation, quoted Prices and discounts are firm for thirty (30) days from the date of the Sales Quotation. Unless otherwise
stated, prices are quoted EXW (Incoterms 2010), Shipping Point. Unless otherwise stated in the Acknowledgement, if the Prices should be increased by
Seller before delivery of the Goods to a carrier for shipment to Buyer, then these Terms shall be construed as if the increased prices were originally inserted
herein, and Buyer shall be billed by Seller on the basis of such increased prices.
(b) All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental
authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes (present or future); provided, that, Buyer shall
not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other
assets.
9. Payment Terms.
(a) Unless otherwise provided in the Acknowledgement, if Buyer has approved credit with Seller, Buyer shall pay all invoiced amounts due to Seller within
thirty (30) days from the date of Seller’s invoice. If Seller does not have Buyer’s financial information and has not provided pre-approved credit terms for
Buyer, the payment must be made in cash with order or C.O.D. in US dollars. If Buyer has approved credit terms, the payment may be made by cash with
order, wire transfer of immediately available funds, or check in US dollars. Certain products require a down payment. Any payment terms other than set
forth above will be identified in the Acknowledgement. Notwithstanding anything herein to the contrary, all prepaid deposits and down payments are non-
refundable. If a deposit is not received when due, Seller reserves the right to postpone manufacturing of Goods until payment is received. Seller will not be
responsible for shipment delays due to deposit payment delays.
(b) In Seller’s sole discretion, Seller may access Buyer interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible
under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including,
without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of
any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure
continues for ten (10) days following written notice thereof.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s
breach, bankruptcy or otherwise.
10. Intellectual Property; Software License.
(a) To the extent that any Goods provided under this Agreement contains software, whether pre-installed, embedded, in read only memory, or found on
any other media or other form (“
Software
”), such Software and accompanying documentation are licensed to Buyer, not sold and shall remain the sole and
exclusive property of Seller or third party licensors of Seller. Seller grants Buyer a non-exclusive license to use the Software solely as provided in and in
connection with the use of the Goods in which such Software is contained and in accordance with any applicable user documentation provided with such
Goods and subject to the provisions of this Agreement. Certain of Seller’s Goods may include third party software such as computer operating systems.
Licenses to such third party software are subject to the terms and conditions of any applicable third party software license agreements. Unless identified in
the Acknowledgement, no license is granted by Seller with respect to such third party software products that may be provided with the Goods (if any). Seller
makes no warranties regarding any third party software that may accompany the Goods or otherwise and such software is explicitly included in the definition
of Third Party Products below.
(b) Buyer shall not copy, modify, or disassemble, or permit others to copy, modify, or disassemble, the Software, nor may Buyer modify, adapt, translate,
reverse assemble, decompile, or otherwise attempt to derive source code from the Software. Buyer shall not transfer possession of the Software except as
part of, or with, the Goods, and each such transfer shall be subject to the restrictions contained herein. Buyer may not sublicense, rent, loan, assign or
otherwise transfer the Software or documentation, and Buyer shall retain on all copies of the Software and documentation all copyright and other proprietary
notices or legends appearing therein or thereon. Seller may terminate this license upon written notice for any violation of any of the terms of this license
or any material breach of any provision of this Agreement. Buyer shall immediately discontinue use of the Software upon any termination of this license or
Agreement. This license shall terminate upon any termination of the Agreement.
