Unless otherwise specifically agreed in writing signed by an authorized employee of GIVI USA, INC. (“seller”). The following terms and conditions shall apply to the sale of items from Seller to Buyer. Different or additional terms and conditions proposed by Buyer in it’s purchase order or otherwise are objected by the Seller, and Buyer’s assent to the terms and conditions of sale set forth herein shall be conclusively presumed from Buyer’s failure to reasonably object thereto in writing and Buyer’s acceptance to all or part of the items ordered. These terms and conditions of sale represent the entire sale agreement of the parties, and all proposed negotiations, representations or agreements made or entered into prior to or contemporaneously with this sale agreement whether oral or written are excluded.
1. Price All prices are quoted F.O.B. Sellers facility listed on the invoice, unless otherwise agreed in writing and do not include any cost of the freight, insurance, special packaging or insulation, any cost of inspection, permits or other compliance with governmental laws and regulations, any sale, use, excise, customs or other taxes, duties or fees, or any other changes, all of which must be paid by the Buyer. A tax or other Governmental charge upon the production, sale, shipment or use of any other items that Seller is required to pay or collect from Buyer shall be paid by the Buyer or Seller unless Buyer furnishes Seller with tax exemption certificate acceptable to the appropriate taxing authority. Changes in tariffs, freight rates or transportation changes used in determining delivered prices that occur after sale and prior of shipment will be for the account of Buyer.
2. Payment Unless credit terms have been extended to Buyer in writing by Seller, payment terms are net 30 days in United States currency. Seller reserves the right to modify or withdraw credit terms at any time without notice and to require guaranties, security or payment in advance of the amount of credit involves. If Buyer falls to fulfill the terms of payment, Seller may defer further shipment to Buyer or, at it’s option, cancel the unshipped portion of the Buyer’s order. Buyer agrees to pay interest on all past due invoices at a rate of 18% per annum, computed on the basis of a 365-day year and the actual days elapsed to accrue from the date such payment is due until paid in full; provided, however, that if such rate exceeds the maximum rate permitted under applicable law, then interest shall be charged at the maximum rate permitted under such law. In addition, Buyer agrees to pay all costs, including reasonable attorney’s fees included by Seller in the enforcement of any obligation of Buyer hereunder.
3. Terms of Shipment, Acceptance Seller will ship in accordance with the instructions supplied by Buyer, but if Buyer fails to furnish such instructions, Seller will select what is, in its opinion, satisfactory routing for shipment. If Buyer is to pick up products but has not done so within seven (7) days after notification that they are ready for shipment, Seller may ship the products by any commercial carrier it deems satisfactory. Title to and risk of loss for the items passes to the Buyer upon delivery to the carrier. Any prepayment by Seller of freight changes shall be stated in the delivery documents for the items. By accepting items from carrier, Buyer agrees that they from defects that a reasonable careful inspection would disclose.
4. Date of Shipment Shipping dates are given at the best of Sellers knowledge base upon conditions existing at the time the order is placed and upon information supplied furnished by Buyer. Seller will, in good faith, endeavor to ship by the estimated shipping date but shall not be responsible for any delay or damage arising there from.
5. Cancellation Order by Buyer; Return of Products for Credit Buyer’s order may not be modified or rescinded except in writing signed by Seller and Buyer, if all or part of Buyer’s order is terminated by such modification or rescission, Buyer in the absence of contrary written agreement between Seller and Buyer, shall pay termination charges based upon cost determined by accepted by accounting principles equal to the reasonable anticipated profit of Seller in connection with such sale. In any circumstances, Seller’s written consent must be given in advance of Buyer’s return of product for credit.
6. Force Majeure Seller shall not be liable for any failure to perform its obligation under this sales agreement resulting directly or indirectly from or contributed to by any acts of God, act of Buyer, acts of civil or military authority, fire, strikes or other disputes, accidents, floods, epidemics, or riots, delays in transportation, lack or inability to obtain raw materials, components, labor, fuel or supplies, or other circumstances beyond Seller’s reasonable control. All sales shall be subject to the export and munitions control laws of the United States. Buyer shall not make any dispositions, re-export or diversion of United States origin products purchased from Seller except as said laws may expressly permit.
7. Disclaimer of Product Warranty Buyer acknowledges that Seller is selling products in its capacity as a distributor or reseller of such products and that SELLER MAKES NO WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE EXPRESSLY EXCLUDED. NO PERSON IS AUTHORIZED TO GIVE ANY WARRANTY IN SELLER’S BEHALF OR TO ASSUME FOR SELLER ANY OTHER LIABILITY IN CONNECTION HEREWITH.
8. Exclusivity of Remedy; Limitation of Liability In the event Buyer claims Seller has breached any of it’s obligations under this sales agreement, whether of warranty or otherwise, Seller may request the return of the goods purchased and tender to Buyer the purchases price therefore paid by the Buyer and, in such event, Seller shall no longer have any obligation under this agreement except to receive a refund of such purchase price upon redelivery of such goods. If Seller so requests the return of such goods, the goods shall be redelivered to Seller in accordance with Seller’s instructions and at sellers expense. THE REMEDIES PROVIDED FOR IN THIS PARAGRAPH SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY OF BUYER AGAINIST SELLER FOR BREACH OF ANY OF SELLER’S OBLIGATIONS UNDER THIS AGREEMENT, WHETHER THE CLAIM IS MADE IN TORT OR IN CONTRACT, AND WHETHER FOR PERSONAL INJURY, COMMERCIAL LOSS OR OTHER MONETARY LOSS, INCLUDING CLAIMS BASED ON WARRANTY, EGLIGENCE OR OTHERWISE. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES NOR SHALL SELLER’S LIABILITY FOR ANY CLAIM OR DAMAGE ARISING OUT OF OR IN CONJUNTION WITH THIS SALES AGREMENT OR THE MANUFACTURE, SALE, DELIVERY OR USE OF THE GOODS EXCEED THE PURCHASE PRICE OF SUCH GOODS.
9. Governing Law; Venue; Limitations of Actions This sales agreement shall be performed in North Carolina and shall be governed by the Uniform Commercial Code as adopted in the State of North Carolina and shall otherwise be governed by the internal laws (as opposed to the conflict of law provisions) of the State of North Carolina. Whenever a term defined in North Carolina Uniform Commercial Code is used herein, the definition contained in such Uniform Commercial Code is to control. BUYER HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE COURT LOCATED WITHIN MECKLENBURG COUNTY, NORTH CAROLINA, OR FEDERAL COURT LOCATED IN THE WESTERN DISTRICT OF THE STATE OF NORTH CAROLINA, AND CONSENTS THAT ALL SERVICES OF PROCESS BE MADE BY REGISTERED OR CERTIFIED MAIL DIRECTED TO IT AT ITS ADDRESS SET FORTH ON THE OPPOSITE SIDE OF THIS SALES AGREEMENT, AND SERVICES SO MADE SHALL BE DEEMED TO HAVE BEEN COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT THEREOF OR THIRTY (30) BUSINESS DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID AND PROPERLY ADDRESSED. TO THE EXTENT PERMITTED BY THE LAW, BUYER WAIVES TRAIL BY JURY AND WAIVES ANY OBJECTIONS THAT IT MAY HAVE BASED ON LACK OF JURISDICTION OR IMPROPER VENUE OR FORUM NONO CONVENIENSTO THE CONDUCT OF ANY PROCEEDING INSTITUTED HEREUNDER OR ARISING OUT OF OR IN CONNECTION WITH THIS SALES AGREEMENT. NOTHING IN THIS SALES AGREEMENT SHALL AFFECT THE RIGHT OF SELLER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY THE LAW OR TO BRING ANY ACTION OR PROCEEDING AGAINST BUYER IN THE COURTS OF ANY OTHER JURISDICTION THAT HASJURISDICTION OVER BUYER. NO ACTION MAY BE BROUGHT BY BUYER FOR SELLER’S BREACH OF THIS SALES AGREEMENT OR ANY COVENANT OR WARRANTY ARISING THEREFROM MORE THAT ONE YEAR AFTER THE CAUSE OF ACTION HAS OCCURED.