Aldon Company Inc. Terms And Conditions Of Sale

ALDON COMPANY INC. TERMS AND CONDITIONS OF SALE

As used herein, “Buyer” shall denote the Purchaser of Products from Aldon Company (“Seller”) located at 3410 Sunset Avenue, Waukegan, Illinois.

ACCEPTANCE. Unless otherwise provided for in writing by Seller, it is understood and agreed that all sales are made in accordance with the terms and conditions contained herein. In the event of any conflict or inconsistency, these terms and conditions shall take precedence over any terms and conditions that may appear in Buyer’s purchase order(s). Seller shall not be bound by Buyer’s terms and conditions unless expressly agreed to in writing by Seller. In the absence of written acceptance of the terms and conditions herein, acceptance of or payment for any of Products covered hereby shall constitute an acceptance of these terms and conditions. As used in these terms and conditions, “Products” shall mean and include the Products, components, services, repairs or subassemblies sold by Seller. Products not rejected within fourteen (14) days of receipt shall be deemed accepted.
SHIPMENT. All Products will be shipped F.O.B. Seller’s factory. Seller shall use its reasonable best efforts to ship the Products according to the schedule requested by Buyer, provided that under no circumstances will Seller be liable for any loss, expense, or damage incurred by Buyer if Seller fails to meet the requested delivery schedule. Seller may have the right to make partial shipments as mutually agreed by Seller and Buyer, and each partial shipment shall be deemed a separate sale, and payment therefore shall become due in accordance with Seller’s standard payment terms. In the absence of specific instructions from Buyer, Seller will select the carrier for shipment, but by doing so, the carrier shall not be construed to be the agent of Seller.
TERMS OF PAYMENT. Products will be invoiced upon shipment, contracted Services shall be invoiced upon completion of such Services by Seller. All payments are in U.S. Dollars. All payment terms are net thirty (30) days from date of invoice, subject to the approval by Seller of the amount and terms of credit. Seller reserves the right at any time to revoke any credit extended to Buyer if payment is in arrears, or if Buyer’s credit does not warrant further extension of credit. Buyer may be assessed a 1% per month delinquency charge for all invoices that remain unpaid for more than thirty (30) days past their due date. Buyer agrees to pay any and all of Seller’s collection costs, including but not limited to reasonable attorney fees and any court costs, in the event that Buyer does not remit invoiced amounts per the payment terms described in these terms and conditions.
TITLE AND RISK OF LOSS. Buyer shall take title to the Products upon delivery of the same by Seller to a common carrier or to Buyer’s representative at the F.O.B. point, and all risk of loss and expenses (including but not limited to freight charges, export and import duties, and insurance fees) in connection with such Products shall be the obligation of Buyer. Buyer shall also be responsible for additional transportation or accessorial charges including switching, spotting, handling, storage, and demurrage unless such charges are included in the applicable tariff freight rate from shipping point to the designated delivery point.
SECURITY INTEREST IN PRODUCTS. Seller shall retain a purchase money security interest in the Products until Seller has received full payment for the Products. Until payment is received by Seller, the Products shall remain the personal property of Seller, regardless of any interconnection with other equipment or property. Buyer shall perform all acts and execute and deliver all documents that Seller may reasonably request to perfect and retain such purchase money security interest.
TAXES. All prices are exclusive of all tariffs, customs duties, federal, state, and local excise, sales, use and similar taxes. Buyer will be responsible for such taxes and tariffs, when applicable, unless Seller receives a properly executed, acceptable exemption certificate from Buyer prior to shipment.
FORCE MAJEURE. In no event shall Seller be liable for any delay or default in its performance of any obligation under these terms and conditions caused directly or indirectly by an act or omission of Buyer, fire, flood, act of God, an act or omission of civil or military authority of a state or nation, strike, lockout or other labor disputes, inability to secure, delay in securing, or shortage of labor, materials, supplies, transportation, or energy, or by war, riot, embargo or civil disturbance, breakdown or destruction of plant or equipment, or arising from any cause whatsoever beyond Seller’s reasonable control. At Seller’s option and following notice to Buyer, any of the foregoing causes shall be deemed to suspend such obligations of Seller so long as any such cause shall prevent or delay performance, and Seller agrees to make and Buyer agrees to accept performance of such obligations whenever such cause has been remedied.
LIMITED WARRANTY. When acting as a value-added reseller of Products manufactured by third parties, Seller shall pass through warranties of the original equipment manufacturer and Seller shall not be responsible for warranty claims pursuant to such products, except that Seller shall warrant modifications, extensions or other engineering services related to third party Products as indicated below.
Seller warrants that all Products manufactured by Seller will be free from defective material or faulty workmanship for a period of one (1) year from date of shipment by Seller. In the event of malfunction or other indication of failure attributable directly to defective material or faulty workmanship, Seller will, at its option, repair or replace the defective Products or component to whatever extent it shall deem necessary to restore the Products or component to proper operating condition. When returning all Products for warranty service, Buyer agrees to provide Seller with information concerning the malfunction of the Products, Buyer’s return mailing address, telephone number, end user name and location, proof of the original date of shipment from Seller to Buyer, and any specific information requested by Seller relating to how the product(s) was used, in what application, and under what operating conditions. At Buyer’s request, Seller shall prepare all shipping documents and provide them to the Buyer for Buyer to return the goods to Seller.
During the warranty period, all labor and materials will be provided without charge to Buyer. Products repaired or replaced by Seller under warranty will continue to be warranted according to the provisions of these terms for the duration of the initial warranty period. Products returned and determined to be out of warranty will be repaired or replaced on a time and materials basis for parts and labor upon receipt of Buyer’s Purchase Order. Products not manufactured by Seller will be subject to manufacturer’s warranty. Seller will return the Products to Buyer after repair or replacement by the carrier and transportation method chosen by Seller and at Seller’s expense. If Buyer elects an expedited transportation method, then Buyer assumes the cost of return shipment.

This limited warranty does not apply to losses or damages to Products that occur in shipment to or from the Seller, required preventative maintenance of Products such as tuning, level setting, or battery replacement, or are due to:
1. Improper installation, operation, or maintenance
2. Misuse, accident, negligence or any cause other than ordinary commercial or industrial application
3. Installation of unauthorized or nonconforming accessories or components on to the Products;
4. Adjustment, repair, or modification by anyone other than Seller authorized personnel
5. Excessive or inadequate heating or air conditioning, connection to improper voltage supply, electrical power failures, lightning strikes, or other irregularities
6. Corrosion due to improper product storage or adverse environmental conditions including excessive humidity or salinity or improper ventilation.
This limited warranty shall be void if any part of the Products are opened or tampered with where there is a clearly marked seal stating that such seal should not be opened or tampered with and that the limited warranty will be null and void.
EXCLUSION OF WARRANTIES: EXCEPT FOR INFRINGEMENT (AS SET FORTH IN SECTION 11 BELOW), THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, STATUTORY, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE EXCLUSIVE REMEDY FOR DEFECTIVE PRODUCTS SHALL BE ONLY AS STATED HEREIN. NO OTHER REPRESENTATIVE OR PERSON IS AUTHORIZED TO REPRESENT OR ASSUME FOR SELLER ANY LIABILITY IN CONNECTION WITH THE SALE OR WARRANTY OF SELLER’S PRODUCTS OTHER THAN AS SET FORTH HEREIN.
LIMITATION OF LIABILITY. SELLER’S LIABILITY FOR LOSS OR DAMAGES SHALL NOT EXCEED THE PRICE PAID OR PAYABLE BY THE BUYER FOR THE PARTICULAR PRODUCT REGARDLESS OF THE FORM OF ANY CLAIM. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY COMMERCIAL LOSSES, LOSS OF PROFITS OR REVENUES, OR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER RESULTING FROM ANY BREACH ON THE PART OF SELLER OR FROM THE PRODUCTS DELIVERED OR THE SERVICES PERFORMED, WHETHER IN CONTRACT OR TORT, WHETHER OR NOT CAUSED BY A DEFECTIVE PRODUCT OR NEGLIGENCE OR ARISING FROM THE BUYER’S INABILITY TO USE THE PRODUCTS EITHER SEPARATELY OR IN COMBINATION WITH ANY OTHER EQUIPMENT OR FROM ANY OTHER CAUSE.
In addition to the disclaimers of liability expressed in these terms and conditions, Seller shall not have any liability of any kind unless Buyer gives Seller notice of its claim within thirty (30) days after the date Buyer knows or should know of its claim and files suit against Seller within one year after such date.
INFRINGEMENT INDEMNIFICATION. Seller warrants that its Products furnished hereunder and any part thereof shall be delivered free of a rightful claim of any third party for infringement of any United States patent, copyright or trademark. If notified promptly in writing and given authority, information and assistance (at Seller’s expense), Seller shall defend or may settle any suits or legal proceedings against Buyer so far as such suits or legal proceedings are based on a claimed infringement that breaches this warranty. If any such Product, or any part thereof, is in such suit held to constitute such an infringement and the use of said Product is enjoined, Seller shall, at its expense and at its option, either procure for the Buyer the right to continue using said Product, replace same with a non-infringing Product, modify same so it becomes non-infringing, or remove said Product and refund the purchase price (less reasonable depreciation for use) and any transportation costs separately paid by Buyer. The foregoing states the entire liability of Seller for infringement by said Products or any part thereof.
The preceding paragraph shall not apply to any Products or part manufactured to Buyer’s design specifications, or arising from any use of the Products by Buyer not intended or recommended by Seller. As to any such Product, use or combination, Seller assumes no liability whatsoever for infringement, and Buyer will hold Seller harmless against any infringement claims arising therefrom.
THIS PROVISION IS STATED IN LIEU OF ANY OTHER EXPRESS, IMPLIED, OR STATUTORY WARRANTY AGAINST INFRINGEMENT AND SHALL BE THE SOLE AND EXCLUSIVE REMEDY FOR PATENT, COPYRIGHT, AND TRADEMARK INFRINGEMENT OF ANY KIND. IN NO EVENT SHALL SELLER BE LIABLE OR RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES TO BUYER OR ITS CUSTOMERS FROM OR ARISING OUT OF ANY PATENT, COPYRIGHT OR TRADEMARK INFRINGEMENT OR CLAIMS THEREFOR.
RESTOCKING CHARGE. Requests for Product returns for reasons other than warranty repair must be approved in advance by Seller. A Return Material Authorization number will be required as detailed in Section 8 above. Items will be inspected upon return. Any subsequent credit to Buyer’s account is based on the condition of the Product(s), as determined by Seller’s inspection and the credit is subject to incurred freight charges and a restocking fee of 15% of purchase price. Equipment and accessory items to be returned that were not manufactured by Seller will be subject to the restocking policy of the manufacturer thereof.
LANGUAGE. The Seller is obligated to conduct business only in English. All written and verbal communications relating to Buyer including brochures, manuals, diagrams, letters, emails, product labels, faceplates, quotations, invoices, purchase orders, in-person meetings, phone meetings, etc. shall be in English. Any costs of translation necessary to support Warranty related issues will be borne by the Buyer.
GENERAL
1. Neither party shall delegate any duties, nor assign any rights or claims, without the prior written consent of the other, and any such attempted delegation or assignment shall be void
2. Each party shall comply with all applicable laws, statutes and regulations relating to the sale, distribution, and use of the Products and the performance of its duties and obligations hereunder.
3. These terms and conditions constitute the entire understanding between Seller and Buyer. Any other document, proposal, specification, statement of work, or representation which may amend or supplement these terms and conditions will not be binding unless agreed to in writing by appropriate representatives of both parties.
4. Every provision of these terms and conditions is intended to be severable. If any provision is held to be invalid or unenforceable by law or by a court of competent jurisdiction, all other provisions will nevertheless continue in full force and effect.
5. A failure by either Seller or Buyer to exercise, or delay in exercising, any right or power conferred upon it by these terms and conditions shall not operate as a waiver of any such right or power.
6. The validity, performance, and construction of these terms and conditions shall be governed by the laws of the State of Illinois, without giving effect to the conflict of law principles thereof. Lake County in the State of Illinois is hereby designated as the place of trial for any action or proceeding arising out of or in connection with these terms and conditions.