Standard Terms and Conditions of Sale
1. ACCEPTANCES AND CANCELLATION OF ORDERS
Each order for goods is subject to acceptance in writing by a duly authorized agent of Open Source Meter, Inc. (hereinafter ‘Open Source Meter ‘). Any written acknowledgment of receipt of an order shall not, in and of itself, constitute such acceptance. Orders accepted by Open Source Meter may be canceled by Buyer only upon written consent of Open Source Meter. In the event of cancellation or other withdrawal of an order for any reason and without limiting any other remedy which seller may have as a result of such cancellation, reasonable cancellation or restocking charges, which shall include all expenses then incurred and commitments made by Open Source Meter shall be paid by Buyer to Open Source Meter or though affiliate payment services. Special orders for items not normally stocked are non-cancelable and nonrefundable.
All prices quoted and goods shipped are FOB Open Source Meter ‘s facility. Open Source Meter reserves the right to ship plus or minus five percent (5%) of order quantities ordered by buyer. Title to and risk of loss of all goods shall pass upon Open Source Meter delivery to carrier for shipment to Buyer. Unless otherwise agreed by Open Source Meter in writing, Buyer shall pay all freight, handling, delivery, and insurance charges for shipment of goods. Choice of carrier and shipping method and route shall be at the election of Open Source Meter unless specifically designated by Buyer. Open Source Meter shall not be liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of Open Source Meter, which causes shall include, without limitation, acts of God, acts of omission of Buyer or civil or military authorities, fires, strikes, epidemics, quarantine restriction, flood, earthquakes, riot, war, delays in transportation or inability to obtain necessary labor, materials or supplies. In the event of any delay, the contractual date of delivery, if any, shall be extended for a period equal to the time lost as a consequence of such delay without penalty to Open Source Meter. Open Source Meter shall be entitled to refuse or to delay shipments upon failure by Buyer to pay promptly any payments due Open Source Meter whether on this or any other contract between Open Source Meter and Buyer. Open Source Meter shall have the right to deliver all hereby at one time or in portions from time to time within the time for delivery provided in such order.
Unless specified by Open Source Meter in writing (refer to payment terms on face of Buyers invoice) payment in full of net amount owing, without offset or deduction, is due 30 days from invoice date. If payment is not received within such 30 day period, a late payment charge of 1 % per month of the unpaid balance or the maximum amount allowed by law, whichever is less, shall be paid by Buyer. All checks are accepted subject to collection, and Buyer agrees to pay all costs of collection. Including reasonable attorney fees and costs. Any check received from Buyer may be applied by Open Source Meter against any obligation of Buyer to Open Source Meter under this or any other agreement, notwithstanding any statement appearing on or referring to such check. Acceptance of any partial payment shall not constitute a waiver of Open Source Meter right to payment in full of all amounts owing from Buyer to Open Source Meter. Open Source Meter shall have the right to refuse to ship to Buyer on credit at anytime and shipments made to Buyer on COD or other basis shall be subject to the terms and conditions of sale contained herein. Open Source Meter shall retain a purchase money security interest in all goods sold to Buyer until the full purchase price therefore and any late payment charges have been paid.
4. INSPECTIONS AND ACCEPTANCE OF GOODS
Buyer is deemed to have accepted products unless notice of rejection is given within a reasonable time, which is agreed to be within ten (10) days after receipt. CLAIMS OF LATE DELIVERY are void unless made prior to receip t of products, and receipt of products shall constitute a waiver of any claim of late delivery. No return will be accepted without a ‘Return Material Authorization’ (RMA#). Material must be returned as directed by the location issuing the RMA# and be in its original packaging.
5. RIGHT TO INCREASE PRICES BY OPEN SOURCE METER
Unless otherwise specified on the face of this agreement, Open Source Meter reserves the right to increase the selling price of any and all goods ordered by Buyer in which delivery is not within 6 months from the date of the purchase order. Open Source Meter further reserves the right to increase the selling price of any or all goods ordered by the Buyer for which the Buyer subsequently specifies a later delivery date than that shown on his purchase order and co nfirmed by Open Source Meter.
Open Source Meter prices do not include sales, use, excise, or similar taxes. Accordingly, Buyer shall in addition to prices specified by Open Source Meter, pay any sales, use, excise, or similar tax attributable to the sale of goods covered hereby, or, in lieu thereof, provide Open Source Meter with tax exception certificates acceptable to the taxing authorities.
7. DISCLAIMER OF WARRANTIES/LIMITS ON REMEDIES
Open Source Meter disclaims any warranty respecting the merchantability of the products sold to Buyer or their fitness for any particular purpose or use. Open Source Meter liability arising out of any sale of goods to Buyer is expressly limited to either (1) refund of the purchase price paid by the Buyer for such goods (without interest), or (2) repair and/ or replacement of such goods, at Open Source Meter election, and such remedies shall be exclusive and in lieu of all others. In no event shall Open Source Meter be liable for indirect, special, incidental, or consequential damages of any nature, including, but not limited to, personal injury or property damage. Buyer’s recovery from Open Source Meter for any claim shall not exceed the purchase price paid by the Buyer for the goods, irrespective of the nature of the claim, whether in warranty, contract or otherwise.
In the event of default by Buyer, Buyer shall pay all costs incurred by Open Source Meter in collecting any amounts due to Open Source Meter by Buyer, including reasonable attorney fees and costs. The waiver by Open Source Meter of any breach hereof or default in any payment shall not be deemed to constitute a waiver of any succeeding breach or default. In the event of default Open Source Meter shall have all the remedies provided under the Uniform Commerc ial Code, which shall be cumulative with one another and with any other remedies, which Open Source Meter may have at law, in equity, under any agreement of any type or, without limitation, otherwise. The exercise or failure to exercise any remedy shall not preclude the exercise of that remedy at another time or of any other remedy at any time. No action, regardless of form, arising out of or in any way connected with, the goods furnished or services rendered by Open Source Meter, may be brought by Buyer more than six months after cause of action has accrued.
10. INTEGRATION AND ASSIGNMENT
This agreement sets forth the sole and entire agreement between the parties with regard to the subject matter hereof and supersedes any and all prior or contemporaneous oral or written agreements between them regarding the same. 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 agreement. Acceptance or acquiescence in a course of performance rendered under this agreement shall not be relevant to determine the meaning of this agreement even though the accepting or acquiescing party had knowledge of the nature of the performance and opportunity for objection. No subsequent alteration of this agreement wh atsoever is binding upon Open Source Meter unless reduced to writing and signed by both Open Source Meter and the Buyer. No agent, employee, or representative of Open Source Meter has any authority to bind Open Source Meter to anyaffirmation, representation, or warranty made by agent employ ee or representative is specifically included within this agreement, it has not formed a part of the agreement and shall not in any way be enforceable against Open Source Meter. Any assignment of this agreement or any rights hereunder by Buyer shall be void without Open Source Meter written consent.
11. BUYER TERMS AND CONDITIONS
Open Source Meter desires to provide its customer with prompt and efficient service. Accordingly, goods furnished and services rendered by Open Source Meter are sold only on the terms and conditions stated herein. Notwithstanding any terms and conditions on Buyers order, the information and conditions on the Credit Application are controlling over Buyer and Open Source Meter. Any conflicting statements or terms listed on the Buyer purchase orders, invoice, confirmations or other Buyer generated documents (‘Buyer Document) whether heretofore or hereafter submitted are negated by submission of the Credit Application and the issuance of credit by Open Source Meter, and all different or additional terms and conditions contained in any Buyer Documents are hereby objected to by Open Source Meter. Open Source Meter performance of any contract is expressly made conditional on Buyers agreement to Open Source Meter Terms and Conditions of Sale, unless otherwise specifically agreed in writing by Open Source Meter. In the absence of such an agreement, commencement of performance and/or delivery shall be for Buyers convenience only and shall not be deemed or construed to be acceptance of Buyers terms and conditions, or any of them. If a contract is not earlier formed by a mutual agreement in writing, acceptance of any goods or services shall be deemed acceptance of the terms and conditions stated herein.
This agreement and performance by the parties hereunder shall be construed in accordance with the internal laws (excluding the laws relating to conflicts) of the State of Delaware. The parties expressly exclude the applicability of the United Nations International Sale of Goods. All agreements, covenants, conditions, and provisions contained herein shall apply to and bind the assignees and successors in interest of Buyer. If any provision or portion of this agreement is held to be invalid, illegal, unconscionable or unenforceable, the other provisions and portions hereof shall not be affected. The several captions used herein are for the convenience of the parties only and shall not affect the construction or interpretation here of. Buyer warrants and represents to Open Source Meter that all goods shall be purchased for Buyers business or commercial use and not for Buyers personal, family, or household purposes.