last updated in May 2018
1. Purchase of Products
(a) Except to the extent otherwise agreed upon in writing, the terms set forth herein shall govern the sale and delivery of the products described on the reverse side hereof (“Products”) by Analytics-Shop USA LP (“Seller”) and purchased by the purchaser named on the reverse side hereof (“Purchaser”).
(b) All dealings between the parties shall be in writing and no order of Purchaser shall be binding on Seller until approved in writing by Seller.
(c) Prices of Products published by Seller or quoted by Seller ‘s representatives are subject to change at any time without notice. All prices quoted by Seller or Seller’s representative shall be valid for sixty (60) days. All prices will be as specified by Seller and if no price is specified the price will be the price stated on Seller’s price list valid at the time of shipping of the Products. All prices are subject to adjustment based upon change in specifications, quantities, shipment arrangements, increase in costs or materials or costs of production.
(d) Except as provided in subsection (e) of this Section 1, a purchase contract hereunder shall become effective upon the mailing or electronic transmittance of a written acceptance of Purchaser’s order by Seller.
(e) Purchaser acknowledges that Seller’s acceptance of any purchase order is dependent on Seller’s prior approval of Purchaser’s credit. Purchaser agrees that Seller may demand assurances of Purchaser’s ability to pay by requesting such trade or banking references or such other information as deemed adequate by Seller.
(f) All information and data contained in general product documentation, brochures, drawings, price lists and offers, whether in electronic or any other form, are approximate only and binding only to the extent as they are expressly incorporated herein and agreed upon by the Seller.
(g) The Products sold by Seller may be subject to patent, trademark, copyright design or other rights of third parties. Seller shall, in no event, be liable for any claim of infringement of any such intellectual property rights.
(h) All context of Seller’s website text logos graphics images is Seller’s property.
2. Prices and Availability
All prices published by Seller or quoted by Seller’s representatives may be changed at any time without notice unless otherwise set forth in writing by Seller. All prices quoted by Seller or Seller’s representatives are valid for sixty (60) days, unless otherwise stated in writing. All prices for the Products will be as specified by Seller or, if no price has been specified or quoted, will be Seller's price in effect at the time of shipment. All prices are subject to adjustment on account of changes in specifications, quantities or shipment arrangements, increases in the cost of raw materials or cost of production, or other terms or conditions which are not part of Seller’s original price quotation.
Prices for the Products exclude all sales, use, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any Products covered hereby, all of which taxes and duties must be paid by Purchaser. If Purchaser is exempt from sales taxes, Purchaser shall provide the proper documentation to Seller at the time of placing the order.
4. Payment Conditions
Seller may invoice Purchaser upon shipment for the price and all other charges payable by Purchaser shall be net thirty (30) days from the date of invoice. If Purchaser fails to pay any amounts when due, Purchaser shall pay Seller an administrative fee of one percent (1%) per month to cover Seller’s internal costs associated with efforts to collect amounts due, together with all other costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) incurred by Seller in collecting such overdue amounts or otherwise enforcing Seller’s rights hereunder. Seller reserves the right to require from Purchaser full or partial payment in advance, or other security that is satisfactory to Seller, at any time that Seller believes in good faith that Purchaser’s financial condition does not justify the terms of payment specified or in the event that Purchaser’s past due balance is excessive in Seller's sole judgment. All payments shall be made in U.S. Dollars. Delivered Products will remain the property of Seller until paid for by Purchaser.
The Products will be shipped to the destination specified by Purchaser Free Carrier (FCA INCOTERMS 2020) Seller’s shipping point. Orders are shipped via UPS or USPS or common carrier. Seller will have the right, at its election, to make partial shipments of the Products and to invoice each shipment separately. Seller reserves the right to stop delivery of Products in transit and to withhold shipments in whole or in part if Purchaser fails to make any payment to Seller when due or otherwise fails to perform its obligations hereunder. All shipping dates are approximate only, and Seller will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond Seller's reasonable control. In the event of a delay due to any cause beyond Seller's reasonable control, Seller reserves the right to terminate the order or to reschedule the shipment within a reasonable period, and Purchaser will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay.
Orders placed by Purchaser with Seller may not be canceled after shipment except upon Seller’s written consent, and subject to Purchaser’s acceptance of Seller's cancellation and/or restocking charges that shall protect Seller against costs and expenses associated with such cancellation. Seller reserves the right to cancel any sale hereunder without liability to Purchaser (except for refund of monies already paid) if the manufacture or sale of the subject Products is or becomes technically or economically impractical or if the manufacturer ceases to manufacture the Product for any other reason.
7. Product Returns
No Product may be returned except under warranty and with the prior written approval of Seller. Approval to return Products damaged during shipment must be requested within three working days of delivery to Purchaser. Seller has the right to repair and return damaged Products.
Approval for the return of Products which fail to meet current published manufacturers specifications must be requested in writing within thirty (30) days of delivery. Seller will assist Purchaser, at Purchaser’s expense, to obtain any manufacturer’s warranty consistent with that granted to Seller. Approval will be subject to the condition that the Products are returned to Seller or to the manufacturer or other source notified by Seller, by registered mail.
8. Export Controls
Purchaser acknowledges that each Product is subject to export control laws, restrictions, regulations and orders of the United States. Purchaser agrees to comply with all applicable export laws, restrictions and regulations of the United States or foreign agencies or authorities, and shall not export, or transfer for the purpose of re-export, any Product to any prohibited or embargoed country or to any denied, blocked, or designated person or entity as listed in any such United States or foreign legal provisions or regulations. Purchaser represents and warrants that it is not on the Denied Persons, Specially Designated Nationals or Debarred Persons List and is not otherwise prohibited by law from purchasing the Products or services hereunder. Purchaser shall be responsible to obtain any license to export, re-export or import as may be required.
9. Warranty and Limitation of Liability
Products are sold by the Seller with such warranties as may be extended by the manufacturer of the Product, and there are no warranties for value added services, services in connection with the Products, or other services provided by the Seller. Seller makes no representation or warranties of any kind, express or implied, the warranty of merchantability or fitness for a particular purpose are hereby excluded. Buyer is responsible for the installation, application and use of the Products in accordance with manufacturers' instructions and Seller shall not be responsible for Purchaser’s improper selection of a Product for a particular application or otherwise. No warranty will apply if the Products are in any way altered, modified or misused after delivery by the Seller.
Seller's liability on any claim for loss or damage arising out of this Agreement or the performance or breach of this Agreement or connected in any manner with the supply of any Products or services hereunder, or the sale, resale, operation or use of such Products or part thereof involved in a claim, whether based on contract, warranty, tort (including negligence and for property damage and death) or other grounds, shall not in any event exceed the price allocable to such Products or part thereof involved in the claim, regardless of cause or fault.
In no event shall the Seller be responsible to Purchaser or any third party for any consequential, incidental or indirect damages, including but not limited to loss of profits, revenues, sales, data, business, goodwill or use, even if the Seller has been advised of the possibility of such loss or damage. The parties agree that without this limitation of liability the Seller would not have agreed to the price or terms and conditions of this agreement. The limitation of liability set forth herein applies both to Products and services purchased or otherwise provided hereunder. Any lawsuit against the Seller in connection herewith shall be filed within one (1) year from the date of purchase or provision of the Products or services.
If the Seller gives advice to Purchaser or training or applications support or other assistance which concern any Products supplied hereunder, or any equipment, system in which the Product may be installed, Seller will not be subject to any liability, whether based on contract, warranty, tort (including negligence) or other grounds in connection with such advice or training or assistance.
10. Force Majeure
The Seller shall not be liable for loss or damage caused by any delay or failure to perform resulting in whole or in part from Acts of God, severe weather conditions, labor disruptions, governmental decrees or controls, insurrections, war, acts of terrorism, risks, shortages, inability to procure or ship Products or procurement of permits and licenses, insolvency or other inability to perform by the manufacturer, delay in transportation, any other commercial impracticability and/or any circumstances beyond the control of the Seller in its business operations.
(a) Purchaser shall be in default (hereinafter “Default”) under this Agreement and Seller may terminate this Agreement and exercise all other remedies in law or in equity if Purchaser: (a) fails to make payment hereunder to Seller when due; or (b) breaches any other term, provision or condition contained in this Agreement; or (c) is declared to be in default under any other agreement between Purchaser and Seller, and if in any of the foregoing cases set out in (a), (b) or (c), Purchaser fails to cure any said breach or default within ten (10) days following written notice thereof from Seller.
(b) Upon the occurrence of a Default, Seller may elect to exercise any one or more of the following options:
(i) Seller may withhold the Products not shipped or stop the shipping of Products already shipped until such time as Purchaser has paid the respective purchase price and any expenses including interest determined at the rate of five percent (5 %) incurred by Seller as a consequence of such default.
(ii) Seller may sell the Products to a third party and require Purchaser to reimburse Seller for any losses, or expenses associated therewith.
(iii) Seller may require payment in cash prior to delivery any Products hereunder.
(iv) Seller may terminate this Agreement.
(v) Seller may exercise all other rights hereunder and may seek all other remedies available to it in law or in equity.
(c) Purchaser agrees that, in the event any legal action should be deemed necessary by Seller to recover any sums due hereunder or to recover possession of the Products, as defined herein above, or any proceeds from the sales thereof, there shall be added to the sums due from Purchaser to Seller the costs of collection, including reasonable attorney’s fees.
(d) When reasonable grounds for insecurity arise with respect to Purchaser’s performance, Seller may in writing demand assurance of due performance and until it receives such assurance may suspend any performance for which it has not already received payment.
12. Protection of Trade Secrets and Confidential Information
The parties hereto agree that
(a) Except as provided for in subsection (b) of this Section, Purchaser shall not disclose any Trade Secrets or Confidential Information of the other party to any individual or entity not a party to this Agreement.
(b) Purchaser may make available Trade Secrets or Confidential Information to its qualified employees, as defined hereinafter, to the extent that such information must be disclosed to such qualified employees to apply the Trade Secrets or Confidential Information to its intended use. A “qualified employee” shall mean any individual employed by or affiliated with Purchaser who is bound by a valid and fully enforceable confidentiality agreement which contains confidentiality obligations substantially similar to the confidentiality obligations stated herein, prior to disclosure of the Trade Secrets and Confidential Information to such employee.
(c) For purposes of this Agreement the following terms shall have the meanings set forth below:
(i) The term “Trade Secrets” shall mean and include any and all designs, plans, processes, tools, mechanisms, programs or compounds known to only Seller, or to those of its clients and employees to whom they must be confided in order to be applied to the uses intended, some or all of which may arise to the level of being patentable or subject to copyrights, all as further defined under the laws of the State of Delaware.
(ii) The term “Confidential Information” shall mean and include information not rising to the level of Trade Secret and not generally known to or by a business in competition with the Seller or otherwise publicly disseminated by the protected party hereto, the disclosure of which may be beneficial to a competing business or detrimental to Seller.
Any controversy of claim arising out of or relating to this Agreement, or the breach hereof, shall be submitted to and be finally resolved by arbitration, to be conducted by the American Arbitration Association (“AAA”), with such arbitration to be held in Atlanta, Georgia in accordance with the AAA’s Commercial Arbitration Rules then in effect. Each party hereby irrevocably agrees that service of process, summons, notices, as other communications related to the arbitration procedures shall be deemed served and accepted by the other party five (5) working days after having been mailed by first class registered mail, return receipt requested, postage prepaid, to the other party, or if actually received by the other party. The arbitration shall be conducted by one arbitrator, as selected by the AAA. Any award or decision rendered in such arbitration shall be final and binding on both parties, and judgment may be entered thereon in any court of competent jurisdiction if necessary. Except as may be provided to the contrary herein, each party hereto shall pay any and all expenses incurred by such party in connection with such arbitration proceeding, unless otherwise determined by the arbitrator, provided that Seller may claim all expenses associated with the arbitration procedure, including attorneys’ fees and costs, in case of Purchaser’s non-payment for Products or default.
(a) Purchaser may not assign this contract without the express prior written consent of Seller.
(b) Except as otherwise expressly provided in Section 1(e) hereof or in a written document, signed by Seller and Purchaser, this document and attachments and exhibits thereto constitute the entire agreement between Seller and Purchaser with respect to the subject matter herein contained and all prior agreements and communications between Seller and Purchaser, whether oral or written, are superseded by this Agreement.
(c) No modification, limitation, waiver or discharge of this Agreement or of any of its terms shall bind Seller unless in writing and signed by a duly authorized employee of Seller. The failure of Seller to insist, in one or more instances, on performance by Purchaser in strict compliance with the terms and conditions hereof shall not be deemed a waiver or relinquishment of any right granted hereunder with respect to any succeeding breach of the same or other provision hereof.
(d) All notices required hereunder shall be in writing and sent by first class mail or by telefax or written confirmation to such addresses as stated on the reverse side hereof.
(e) This Agreement shall be governed by, and construed, interpreted and enforced under the laws of the State of Georgia without giving effect to the conflict of laws principles.
(f) In connection with any litigation, including appellate proceedings, arising out of or pertaining to any of the contractual relationships between Seller and Purchaser or the breach thereof, as contemplated herein, all costs and expenses, including reasonable attorney’s fees, shall be borne by the losing party or, as the case may be, shall be prorated to properly reflect any partial losing or prevailing of the parties to such litigation.
(g) In case any conditions of this Agreement should be or become unenforceable under applicable law, the remaining provisions, stipulations and conditions of this Agreement shall not be affected thereby.
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