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Odyssey
Electronics Terms & Conditions
1.
IDENTIFICATION
OF THE PARTIES.
This contract for the sales of goods is entered
into between Odyssey Electronics, Inc., hereinafter “Seller”,
and the party seeking to purchase goods as specified on
the front side of this document, hereinafter “Buyer”.
This sales agreement shall be known as the “Agreement”.
2.
ACCEPTANCE.
Buyer’s acceptance of goods from Seller
constitutes a full and unequivocal acceptance of these
terms and conditions.
Buyer agrees that Seller’s terms and conditions
as stated herein shall become the entire contract
between Buyer and Seller and shall supersede Buyer’s
order form.
Buyer further agrees that Seller expressly
rejects any and all terms or conditions set forth on
Buyer’s order form or similar document which add to,
remove from, or otherwise conflict or modify the terms
and conditions set forth herein.
Buyer shall have the right to inspect the goods
before accepting them and shall have the right to reject
nonconforming goods.
Payment shall be made in U.S. Currency.
3.
PRODUCT
PRICING.
Unless otherwise stated, all prices quoted by
Seller are based on U.S. Currency and are guaranteed
until 5:00 p.m. Pacific Standard Time (PST) on the date
of quotation, Freight on Board (FOB) Seller’s shipping
dock or other designated point of shipment.
All applicable state and federal taxes, or
assessments, of any kind, which apply to the sale of the
goods covered herein will be added to the purchase price
and shall be paid by Buyer, except to the extent that
Buyer has provided Seller with a valid tax exemption
certificate.
4.
SHIPMENT.
Delivery of all goods covered by this agreement
will be FOB Seller’s shipping dock or other designated
point of shipment.
Delivery will be deemed completed and risk of
loss or damage to the goods shall pass to Buyer once the
goods have been tendered to Buyer or a carrier for
shipment to Buyer.
In no instance shall Seller be liable for direct,
indirect, special, incidental, consequential or any
other form of damage, injury or harm suffered by Buyer
that is caused or otherwise brought about by the delay
in shipment or receipt of goods purchased under this
agreement.
All goods sold under this Agreement shall be
deemed accepted by Buyer unless Buyer notifies Seller,
in writing, within ten (10) calendar days of shipment by
Seller, that goods sold under this Agreement are damaged
or defective.
Buyer must make claims for shortages in writing
to Seller within ten (10) calendar days from the date of
receipt.
5.
COMPETENCY.
If Buyer’s financial condition becomes
impaired, or Buyer fails to make any payment in
accordance with the terms of this Agreement, Seller may
at its sole option defer or decline to make any or all
shipments under this Agreement except on receipt of
security satisfactory to Seller or cash payment in
advance of delivery.
6.
TITLE.
All goods remain the property of the Seller until
all invoices or other outstanding amounts have been paid
for in full.
Until such payment has been made, the Purchaser
shall store the Goods in such a way as to enable them to
be identified as the property of the Seller.
Notwithstanding such retention of Title the
Purchaser may re-sell the goods to its own customers in
the ordinary course of its business.
The Seller may withdraw this privilege at any
time at his discretion.
Title of goods cannot pass to a third party until
all invoices or outstanding amounts are paid in full.
The Purchaser shall accordingly set aside funds
from any re-sale of the goods in whatever form to cover
full payment of the Sellers goods.
Upon any breach of contract, the Purchaser shall
return any goods as requested and allow the Seller
immediate access to any premises where goods are held to
enable identification and repossession as required by
the Seller.
No liability will be accepted by the Seller for
loss or damage howsoever incurred during the exercising
of the above right of repossession.
The Purchaser shall insure the goods from the
time of delivery and at all times while the goods remain
in their possession for the full invoiced value of the
goods.
7.
WARRANTIES.
Seller warrants all goods sold herein to be free
from defects in material and workmanship under normal
use and conditions for which the product was designed
and intended.
Seller does not, however, expressly or impliedly
warrant that the goods sold herein are fit for a
particular purpose as the goods are provided to Buyer
solely upon Buyers’ specification and Seller has made
no inquiry as to Buyers’ intended usage of the goods
themselves, except with respect to the export laws of
the United States of America.
i.
For Products sold hereunder, which are not
manufactured by Seller, the warranty delivered to Seller
by the vendor or manufacturer of such product shall be
assigned to buyer and shall be provided expressly in
lieu of any other warranty by Seller.
ii.
For products sold herein under, which are
manufactured by Seller, Seller warrants the product for
the design life of the product.
iii.
Seller’s liability for defective product shall
be limited to either repair or replacement of the
defective product, to be determined at Seller’s sole
discretion, and Seller assumes no risk of and shall not
in any case be liable for any other damages, including,
without limitation, any special, incidental,
consequential or punitive damages arising from breach of
warranty or breach of contract relating to use of
products sold under this sales Agreement.
A.)
MEMORY:
Major brand is a limited lifetime warranty.
OEM & Rambus is a one (1) year limited
warranty.
B.)
CPU:
Intel and AMD are three (3) month limited
warranty.
Cyrix and IDT are one (1) year limited warranty.
C.)
Compaq, Hewlett Packard, IBM:
Thirty (30) day distribution warranty for repair
or replacement only.
No return for credit.
D.)
Passive Components:
Thirty (30) day limited warranty for form, fit
and function.
No return for credit.
8.
LIMITATION
ON LIABILITY.
In no event shall Seller be liable for any loss
of use, revenue, profit or customer, or for any direct,
indirect or consequential damages arising out of,
connected with, or resulting for the sale of goods under
this Agreement.
9.
MERCHANDISE
RETURN POLICY AND PROCEDURE.
Buyer acknowledges that Seller will not accept
returned merchandise from Buyer which is not accompanied
by a Return Merchandise Authorization (RMA) Form
previously issued by Seller for the goods to be
returned.
Seller will accept only new, unused product in
its original packaging unless prior written
authorization has been obtained from Seller and that
authorization accompanies the returned goods.
Buyer is responsible for paying all return
freight expenses and the risk of loss remains with the
Buyer until the returned goods are physically received
and accepted by the Seller.
All claims for shortage, damage or shipment
errors must be made within ten (10) calendar days of
invoice date.
Our liability shall be limited to the invoice
value of the materials or its replacement.
All shipping errors must be authorized and
received by our customer service manager within twenty
(20) calendar days of invoice date.
Subject to Odyssey Electronics’ approval, you
may return product within fifteen (15) calendar days
after the invoice date for a full credit against further
purchases.
Products that are issued an RMA number after the
15th calendar day of purchase, and up to
thirty (30) calendar days after the purchase date may be
returned but for the then prevailing market value, or
the invoice, whichever is less, for credit against
future purchases.
Products returned after the thirty (30) calendar
days from the purchase date on the invoice are credited
for future purchases at the then prevailing market
value, or invoice, whichever is less, and also a 15%
restocking fee will be charged.
This RMA
number will expire in ten (10) calendar days from the
above date.
10.
PROPRIETARY
AND CUSTOM SPECIFICATION PRODUCTS.
All goods sold, which are specially designed,
configured, manufactured or assembled, based upon Buyer’s
specification, plan, design or request are
non-cancelable and non-returnable for any reason.
11.
CHANGES OR
CANCELLATION OF ORDER.
Orders accepted by Seller are not subject to
change or cancellation by Buyer without first obtaining
Seller’s written authorization and upon payment of a
cancellation fee equaling fifteen percent (15%) of the
total price of the goods.
Seller may at its sole option waive or lower the
cancellation fee, however, any waiver must be made in
writing and must be signed by an officer of Seller.
12.
ARBITRATION.
In the event that a dispute arises between Buyer
and Seller regarding this Agreement, Buyer agrees that
the dispute shall be resolved through binding
arbitration conducted in Orange County, California by a
neutral arbitrator of the American Arbitration
Association (AAA) and according to the rules set forth
by the AAA.
Notice of demand for arbitration shall be filed
in writing with the other party to this Agreement and
with the AAA.
The demand for arbitration shall be made within a
reasonable time after the claim, dispute or other matter
in question has arisen and in no event shall it be made
after the date when institution of legal or equitable
proceedings based upon such claim, dispute or other
matter in question would be barred by the applicable
contractual or other statue of limitations.
The award of the arbitrator shall be final and
judgment may be entered in accordance with applicable
law in any court having jurisdiction over the parties.
13.
LAW
APPLICABLE TO AGREEMENT.
Any dispute, which arises between Buyer and
Seller regarding goods sold under this Agreement, or the
breach, termination, or validity of the Agreement, which
is not resolved through arbitration, shall be
adjudicated in the courts of the State of California,
County of Orange or the United States Federal District
Court, Central District.
The laws of the State of California, without
regard to its conflict-of-laws rules or where the
parties are headquartered or domiciled, shall govern the
entire Agreement and all provisions contained herein or
otherwise contemplated.
14.
ATTORNEY’S
FEES.
If any action is commenced by either party in a
court, or through arbitration, to enforce or interpret
the terms and conditions of this Agreement, the party
finally prevailing in such proceeding or action (after
appeal, if any) shall be entitled to recover from the
unsuccessful party reasonable attorney fees, costs, and
necessary disbursements, in addition to any other relief
to which the prevailing party may be entitled.
15.
SEVERABILITY.
In the event that one, or more, of the provisions
of this Agreement are found to be unenforceable, the
unenforceable provision shall have no effect on the
other provisions of this Agreement.
The remaining provisions shall continue in force.
16.
INTELLECTUAL
PROPERTY.
If an order includes software or other
intellectual property, such software or other
intellectual property is provided by Seller to Buyer
subject to the copyright and user license, the terms and
conditions of which are set forth in the license
agreement accompanying such software or other
intellectual property.
Nothing herein shall be construed to grant any
rights or license to use any software or other
intellectual property in any manner or for any purpose
not expressly permitted by such license agreement.
ENTIRE AGREEMENT.
Buyer warrants and represents that Buyer has
thoroughly examined and has become familiar with the
terms and conditions of this sales Agreement.
Buyer’s acceptance of some or all of the goods
specified in this Agreement shall constitute unequivocal
assent by Buyer to be bound by this Agreement.
Any order submitted on Buyer’s own form
containing statements, clauses, or conditions modifying,
adding to, repugnant to, or inconsistent with the terms
and conditions of sale contained in this Agreement will
be accepted by Seller only with the express
understanding that the obligations of Buyer and Seller
shall be determined solely by this Agreement. Seller’s
failure to object to provisions contained in any
communication from Buyer shall not be deemed an
acceptance of those provisions or a waiver of the
provisions of this Agreement.
No representative of Seller has the authority to
orally modify, rescind, or revise any of the terms or
conditions of this Agreement, and these terms constitute
the entire agreement of the parties with respect to the
subject matter of this Agreement.
For any waiver or revision of the terms and
conditions of this Agreement to be effective, it must be
in writing and must be signed by an officer of Seller.
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