Emergency Technology, Inc. doing business as
TERMS OF SALE
All sales of products by Emergency Technology, Inc., doing business as SOUNDOFF SIGNAL and its affiliates (“Seller”) are made on the following terms and conditions. In these Terms of Sale, products that Seller sells are called “goods,” the purchaser of the goods is called “Buyer” and the contract between Seller and Buyer with respect to the goods is called the “Contract”.
1. Agreement. Seller rejects any prior offers that Buyer has made to Seller. The quotation or proposal is a revocable offer by Seller to sell to Buyer. The quotation or proposal includes Seller’s Terms of Sale, and Seller objects to any different or additional terms. If Buyer has not otherwise agreed to these Terms of Sale, then Buyer’s acceptance of delivery of, or payment for, the goods shall constitute Buyer’s agreement to these Terms.
2. Payment Terms. Unless Seller has agreed otherwise in writing, payment in full of the price is due thirty (30) days after the goods are shipped. Any payment that is not made when it is due shall accrue a late charge of the lessor of 1-1/2% per month or the highest amount of interest allowed by law. Payment must be made at Seller’s office in Hudsonville, Michigan.
3. Prices. Prices of the goods are subject to change without notice and may be increased depending on the date of release and/or shipment of the order, announced increases in Seller’s list prices, or increases in labor, fuel, shipping, and material costs.
4. Delivery and Risk of Loss. Unless Seller agrees otherwise in writing, Seller shall deliver the goods EXW (Incoterms 2010) Seller’s facility, or the point of origin of the goods if the goods are shipped directly to Buyer from a third party, from which the goods will be shipped, except that if Seller’s facility, or the point of origin of the goods if the goods are shipped directly to Buyer from a third party, and Buyer’s facility are both located in the United States, then Seller shall deliver the goods F.O.B. (Uniform Commercial Code term) Seller’s facility, or the point of origin of the goods if the goods are shipped directly to Buyer from a third party, from which the goods will be shipped. The risk of loss of the goods shall pass to Buyer upon identification of the goods to the contract between Buyer and Seller, whether such identification occurs at Seller’s facility or a point of origin other than Seller’s facility. Shipping, delivery, and performance dates are estimates only, and time is not of the essence for Seller’s obligations hereunder. Seller may deliver all the goods at one time or in portions from time to time.
5. Taxes. Seller’s price does not include any privilege, occupation, personal property, value-added, sales, excise, use or other taxes, and Buyer shall be liable for all of those taxes, whether or not Seller invoices Buyer for them. Seller shall have the right to invoice separately any such tax, customs and duties that may be imposed at a later time.
6. Unavoidable Delay. If Seller is not able to finish and deliver the goods to Buyer on time because of anything that Seller cannot control (such as casualty, labor trouble, accidents or unavailability of supplies or transportation), then the estimated delivery time shall be extended accordingly, and Seller shall not be liable to Buyer for any damages that the delay causes.
7. Defects; Remedies. If the Buyer is the original, end-user of the goods, then if an item of the goods that has been properly installed and not subject to abuse or misuse proves to be defective (as defined below) within [the Applicable Warranty Period] after Seller manufactures it, and if Buyer promptly returns the item to Seller F.O.B. Seller’s facility in Hudsonville, Michigan, then Seller shall, at Seller’s option, either repair or replace the defective item, at Seller’s expense. All warranty claims must be accompanied by a dated proof of purchase and a completed return merchandise authorization (RMA) form, provided to Buyer upon request. An item shall be considered “defective” if Seller finds that it is defective in materials or workmanship and if the defect materially impairs the value of the goods to Buyer.
8. Limitations. EXCEPT AS STATED IN PARAGRAPH 7, SELLER DOES NOT MAKE ANY WARRANTY AS TO THE GOODS AND, IN PARTICULAR, DOES NOT MAKE A WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND BUYER IS SOLELY RESPONSIBLE FOR DETERMINING THE PROPER APPLICATION AND USE OF THE GOODS. Seller shall not have any tort liability to Buyer with respect to the goods and shall not be liable for consequential, special, punitive, indirect or incidental damages that arise from a product defect, delay, nondelivery or other breach. Buyer shall not have a right of rejection or of revocation of acceptance of the goods.
9. Safety Features. Buyer shall install and operate the goods properly and according to Seller’s operating instructions and shall not remove or change a safety device, warning or operating instruction that Seller places on the goods.
10. Resale. On each resale of the goods, Buyer shall contractually limit its buyer’s rights and remedies against both Buyer and Seller to the same extent that Paragraphs 7 and 8 above limit Buyer’s rights and remedies.
11. Intellectual Property. All inventions (whether or not patentable), devices, technologies, ideas, improvements, processes, systems, software and other works and matters that Seller creates or develops in the course of Seller’s design, development or manufacture of the goods and all drawings and specifications that Seller provides to Buyer (“Intellectual Property”) shall be Seller’s sole property, and Buyer assigns, and agrees to assign, to Seller all right, title and interest that Buyer now has or in the future acquires in the Intellectual Property. Buyer shall not disclose or use any of the Intellectual Property or any information about Seller’s business, operations or activities, except to the extent necessary for Buyer to use the goods.
12. Export Controls. The goods may be subject to export controls and customs, regulations and laws of the United States or other countries. Buyer agrees that it shall not export or enter into an agreement for the export of any goods purchased from Seller to any prohibited or embargoed country or to any denied, blocked or restricted person or entity including those so designated by the US Government. Buyer shall be responsible for timely obtaining of any required authorization, such as an export license, import license, exchange permit or any other governmental authorization, even though any such authorization may be applied for by Seller. Buyer and Seller shall assist each other in every manner reasonably possible in securing such authorization as may be required. Seller shall not be liable if any authorization is delayed, denied, revoked, restricted or not renewed, and Buyer shall not be relieved thereby of its obligations to pay Seller for the executed portion of the work and termination charges.
13. Returns. SoundOff Signal is not obligated to permit a customer to return a nondefective product. If SoundOff Signal does, in its sole discretion, permit such a return, the return will be subject to a restocking fee of at least 20%, as determined by SoundOff Signal.
All returns must include a return merchandise authorization (RMA) form and number. All items must be returned in their original factory packaging and in “like new” condition. Items returned in other than “like new” condition may be subject to additional restocking fees 0r rejected. Returned items are subject to inspection prior to issuing credit.
14. Cancellation. If an order is pending, there is no fee to cancel an item. If an order has been processed and packed to ship it may not be possible to cancel the order. If an order has shipped it cannot be cancelled.
15. Indemnity. Buyer shall indemnify and hold harmless Seller with respect to all damages, losses, claims and expenses, including consequential and incidental damages and attorney fees, that Seller incurs as a result of (a) Buyer’s breach of any of Buyer’s obligations under these Terms of Sale, (b) any claimed unfair competition or patent, trademark or copyright infringement or (c) any other claim resulting from Seller’s manufacture of the goods to Buyer’s specifications. As to any goods furnished by Seller manufactured in accordance with designs proposed by Buyer, Buyer agrees to indemnify Seller against all claims, demands and suits based against Seller for any intellectual property infringement.
16. Applicable Law. The Contract shall be considered to have been made in the State of Michigan
17. Complete Agreement; Amendment. If Buyer has not otherwise agreed to these Terms of Sale, then Buyer’s acceptance of delivery of, or payment for, the goods shall constitute Buyer’s agreement to these Terms. The Contract will not be amended or supplemented by additional or inconsistent terms contained in a purchase order or another standard form. The terms on Seller’s quotation and acknowledgment and these standard Terms of Sale contain the entire agreement between Buyer and Seller. Any change in the Contract must be by a writing signed by an authorized officer of Seller.