Except for those prices, quantities, payment terms, delivery schedules and other terms identified on the sales order and/or unless otherwise agreed to in writing signed by Aero-Space Computer Supplies, Inc., (“ASCS”), the terms and conditions specified below constitute the entire agreement, oral or written, between ASCS and Customer, and no other terms or conditions shall be of any effect. By placing any order with ASCS, Customer accepts such terms and conditions, and agrees that ASCS objects to and rejects any additional or different terms in any purchase order or other communication, except as specified above.
1. Terms of Payment. UNLESS CREDIT HAS BEEN EXTENDED BY ASCS, all payments are due upon receipt of ASCS’s invoice. All prices are payable in U.S. dollars. Customer will also remain solely liable for all applicable local, state, or federal taxes, freight, shipping, handling, duties or other similar charges, whether or not included in the initial invoice. ASCS reserves the right to modify payment terms prior to shipment, require payment in advance, or to delay, cancel, or stop any shipment or order by reason of Customer’s creditworthiness or should Customer fail to fulfill any obligation when due. In the event any ASCS invoice to the Customer is not paid in full when due, Customer also agrees to pay interest from the due date at the lesser of 8% or the highest legal rate allowed by law, together with ASCS’s attorneys fees or other costs incurred in collecting such amounts, whether or not suit is commenced. All orders are noncancellable by Customer upon acceptance by ASCS, except as provided for herein.
2. Shipment and Delivery. Shipment or delivery dates or schedules are estimates only. All products will be packaged for normal ground transportation, although ASCS will use reasonable efforts to meet special shipping requests at Customer’s sole expense. All deliveries will be made f.o.b. ASCS’s designated shipping point(s). Title will pass and Customer assumes all risks of loss upon delivery to the carrier at point of shipment, and Customer will also be solely liable and responsible for any shipping insurance desired, and will assume full responsibility for negotiating with the carrier or insurer or both in the event of misdelivery, loss, or damage. Customer will also pay reasonable storage charges for products held at Customer’s request for any authorized rescheduled delivery.
3. Limited Warranty and Limitation of Liability. AS A DISTRIBUTOR OF THIRD PARTY PRODUCTS, ASCS MAKES NO WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ONLY WARRANTIES AVAILABLE FOR PRODUCTS PURCHASED THROUGH ASCS WILL BE ANY APPLICABLE MANUFACTURER’S WARRANTIES, TO THE EXTENT SUCH WARRANTIES ARE ASSIGNABLE TO CUSTOMER. ASCS WILL, HOWEVER, ACCEPT DEFECTIVE PRODUCTS ON BEHALF OF SUCH MANUFACTURER(S) WHEN AND TO THE EXTENT SUCH PRODUCTS ARE RETURNED WITHIN THE APPLICABLE LIMITED WARRANTY PERIOD, WITH ASCS’S WRITTEN RETURN AUTHORIZATION; AND IN ACCORDANCE WITH SUCH OTHER PRE-RETURN INSTRUCTIONS PROVIDED BY ASCS.
Use of the customer’s part number on this document or on any products is for convenience only and does not constitute any representation by ASCS with respect to the performance, specifications, or fitness of any part for any purpose. Customer further acknowledges that ASCS is not a product manufacturer, and Customer expressly waives any claim against ASCS based on any infringement or alleged infringement of any third party intellectual property rights with respect to any product or for any indemnity against any such claim(s).
ASCS’S SOLE LIABILITY ON ANY CLAIM, WHETHER IN TORT, CONTRACT, WARRANTY OR OTHERWISE, SHALL BE LIMITED TO COMPLIANCE WITH THE WARRANTY RETURN POLICIES IDENTIFIED ABOVE, AND IN NO EVENT WILL ASCS BE LIABLE FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, CONSEQUENTIAL DAMAGES, OR ANY OTHER LOSS OR CLAIM REGARDING PRODUCTS PROVIDED BY ASCS HEREUNDER, REGARDLESS OF WHETHER ASCS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM. CUSTOMER ACKNOWLEDGES THAT IT IS NOT RELYING ON ASCS’S SKILL OR JUDGMENT TO SELECT OR FURNISH ANY PARTICULAR PRODUCT FOR ANY PARTICULAR PURPOSE AND THAT THERE ARE NO WARRANTIES WHICH ARE NOT CONTAINED IN THIS AGREEMENT. ASCS ASSUMES NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR MANUFACTURER’S PRODUCT SPECIFICATIONS OR THE PERFORMANCE OR ADEQUACY OF ANY DESIGN OR SPECIFICATION PROVIDED TO ASCS BY OR ON BEHALF OF CUSTOMER.
4. Acceptance and Return Policies. All products are deemed accepted by Customer unless Customer notifies ASCS in writing within ten days of delivery and provides all necessary information regarding any product shortage or other alleged defect. No returns may be made for any reason without a Return Authorization Form issued by ASCS. If Customer refuses to accept tender or delivery of any products, or returns any products without ASCS’s authorization, such products will be held by ASCS awaiting Customer’s instruction for 20 days, after which ASCS may deem the products abandoned and dispose of them as it sees fit, without crediting Customer’s account.
5. Force Majeure. ASCS will not be liable for any failure or delay in its performance or in the delivery or shipment of products, or for any damages suffered by Customer by reason of such failure or delay, (and whether or not ASCS has been advised of the possibility of such damages), including, without limitation, any failure or delay caused by, or arising in connection with, any fire, flood, accident, riot, earthquake, severe weather, war, governmental interference or embargo, strike, shortage of labor, fuel, power, material or supplies, delay in delivery by ASCS’s suppliers or any other cause or causes beyond ASCS’s reasonable control. ASCS reserves the right to cancel any order, the shipment of which is or may be delayed for more than 30 days by reason of any such cause and/or to allocate in its sole discretion among Customers or potential Customers, or to defer or delay the shipment of any product, which is in short supply.
6. Governing Laws. This agreement and all transactions hereunder are governed by the laws of the State of Minnesota, applicable to contracts entered into, accepted and to be performed wholly within Minnesota and without regard to applicable conflicts of law principles. Any proceedings for the enforcement of this agreement shall be brought in federal or state courts located in Minnesota. The parties consent and submit to the jurisdiction of said courts and agree that service of process may be made in any manner provided under Minnesota or applicable United States federal law.
7. Government Contractors. If Customer’s order is placed under a contract between Customer and the United States Government, ASCS agrees to comply with those provisions of Customer’s contract (1) that are mandatory upon ASCS and (2) about which Customer placed ASCS on notice at or before the time Customer placed its order with ASCS. ASCS acknowledges that it complies with Sections 6, 7 and 15 of the Fair Labor Standards Act and with applicable FLSA regulations. All rights in technical data and software owned or licensed by ASCS or the manufacturer are hereby reserved and deemed restricted or limited. No provision of Customer’s contract with the government will be binding on ASCS or the manufacturer except as set forth in this paragraph. United States Government Cost Accounting Standards will not apply.
8. Customer’s Disclosure Obligations. Unless previously disclosed prior to ordering by Customer and acknowledged in writing by ASCS, Customer warrants and represents to ASCS that products sold by ASCS are not intended for and will not be used in life support systems, human implantation, nuclear facilities or systems or any other application where product failure could lead to loss of life or catastrophic property damage. Customer will indemnify and hold ASCS harmless from any loss, cost or damage resulting from Customer’s breach of the provisions of this paragraph.
9. Export and Other Restrictions. Certain products may be subject to export or resale, restriction or regulation, and Customer acknowledges that it will comply with such regulations or restrictions. Any or all products may have been imported. Country of origin information is as provided to ASCS by its suppliers and is, where applicable, located on the products themselves or the supplier’s innermost packaging thereof.
10. Customized Products. Customer acknowledges and agrees that unless Customer’s specifications are confirmed by ASCS & manufacturer in writing at the time of purchase, any products which have been manufactured and/or assembled to Customer’s specifications are nonreturnable and will also not be subject to the manufacturer’s standard limited warranty or any other product warranties. Any third party value-added service provider is deemed to be an agent of Customer.
11. Modification of Orders. No order may be canceled, rescheduled or reconfigured without ASCS’s prior written authorization and, in such event, Customer will be liable to ASCS for any additional costs and expenses incurred by ASCS, and for any recapture of volume purchase discounts or other required pricing adjustments.
12. Price Changes. Prices are subject to change upon any rescheduling, reconfiguration or other adjustment authorized by ASCS. Prices are also subject to change upon 30 days notice in response to supplier price increases, whereupon Customer may cancel the undelivered portion for any affected order by delivering written notice to ASCS prior to the shipment thereof and within ten days of its receipt of notice of the price increase.
13. Product Tolerances and Specifications. Unless otherwise specified by the Customer and accepted in writing by ASCS, commercial tolerances will apply on all items. Any proposed change in product tolerances or specifications must also be accepted in writing by ASCS. If changes in tolerance or specification are proposed after receipt of any order, Customer assumes responsibility for the work in process, unused raw material, unamortized tooling and any other related changes to the manufacture and sale of such item to Customer hereunder.
Items identified by ASCS using a manufacturer’s part number will refer to those specifications pertaining to a particular part as set forth in the manufacturer’s applicable current published information.
Where any manufacturing or other source inspection is made by the Customer, any inspector shall be deemed Customer’s agent with authority to accept material on Customer’s behalf, to waive specified test or details of test procedure, and to accept material which may deviate from formal specifications.
14. Customization Charges. Any requested set-up, drawings, design information and partial preparation charges, when invoiced, cover only part of the cost thereof to ASCS. Consequently, ASCS will retain, and the Customer will not acquire, any right, title or interest in any tooling, set-up, drawing, design information, or in any invention resulting therefrom.
15. Limitation of Actions. If either party desires to bring an action against the other party for breach of this Agreement, the time within which the cause of action shall be one year after the accrual of the cause of action.
16. General. These Terms and Conditions of Sale are intended by Customer and ASCS to constitute a final, complete and exclusive expression of their sales agreement, which cannot be modified, waived or amended without ASCS’s written agreement to do so. This agreement or any of the rights or obligations hereunder cannot be assigned by Customer without ASCS’s prior written consent, and this agreement will be binding upon and will benefit the parties and their respective successors, heirs and permitted assigns.