terms and conditions of sales
Unless otherwise agreed in writing, the following conditions of sale shall apply to any order accepted by Sharp Industries, Inc., hereinafter called SII.
title
The title to the merchandise or any part thereof remains vested with SII and shall transfer from SII to purchaser only upon all payments due by purchaser having been fully made except as otherwise expressly stated herein or otherwise between SII and purchaser. The merchandise shall be and remains personal and/or removable property notwithstanding its mode of attachment to realty or other property. If default is made in any of the payments herein, purchaser agrees that SII may retain all payments which have been made on account of the purchase price, up to 50% of the purchase price, as liquidated damages, and SII shall be entitled to the immediate possession of the merchandise and shall be free to enter the premises where the merchandise is located and remove it as SII’s property, without prejudice to SII’s right to recover any further expenses or damages SII may suffer by reason of such non-payment.
TERMS OF PAYMENT
All first orders will be paid by cash or other good funds, regardless of credit status. Unless otherwise agreed in writing, all payments for merchandise released and shipped on approved credit shall be due in (30) days from date of invoice. Past due balances shall be subject to a service charge of 1.5 % per month, assessed each month for all amounts due until paid in full. Partial shipments will be billed as shipped and payments are subject to the above terms. SII may cancel or delay delivery of products in the event a customer fails to make payments when due.
TRANSPORATION AND PAYMENT
SII reserves the right to select the means of transportation and routing when purchaser’s instructions are deemed unsuitable. Risk of loss and/or damage shall pass to customer upon delivery of the products to the transportation company by SII. All products must be inspected upon receipt and claims should be filed with the transportation company when there is evidence of shipping damage either concealed or external. Purchaser acknowledges the necessity to obtain adequate insurance to insure against the risk of loss and damage.
DELIVERY
Delivery schedules are approximate and are based on conditions at the time of acceptance. SII will make every effort to complete shipment as indicated, but assumes no responsibility or liability for loss or damage by reason of delay or inability to ship, caused by acts of God, fires, floods, war, embargo’s, labor disputes, acts of sabotage, riots, accidents, delays in carriers subcontractors or suppliers, voluntary or mandatory compliance with any governmental act, regulation or request, shortage of labor, materials or manufacturing facilities, or any other cause or causes beyond SII’s reasonable control.
LIABILITY
SII shall not be liable for and shall be held harmless by purchaser for any damages consequential or inconsequential, direct or indirect arising out of, in connection with or resulting from the merchandise, including, but without limitation to, the SII’s repair, handling, installation, possession, use, operation or dismantling of the merchandise, and any and all claims, actions, suits, and proceeding which may be instituted in respect to the foregoing.
WARRANTY
SII hereby warrants to the purchaser of the merchandise that it shall be free from defects in materials and workmanship for a period of (1) one-year from the date of purchase, unless otherwise specified in writing. SII shall be liable only for the workmanship during the period of the warranty. No freight cost is included in this warranty. Any damage to the merchandise by purchaser as a result of misuse, abuse, neglect, accident, improper or unauthorized installation or improper operation shall void this warranty. Installation of attachments, electric or electronic controls, replacing parts or mechanism not provided by SII to themerchandise, destruction or alteration of serial number, repair or alteration outside an authorized service center shall also void this warranty. SII sells this product without implied warranties of any type, including an implied warranty of merchantability.
Purchaser shall be solely responsible for determining the adequacy of the merchandise for any and all uses, and the application of the merchandise to any purpose shall not be subject to any implied warranties by SII of fitness for that purpose. Continued use or possession of the merchandise after the period of warranty, or use and possession thereof during said period after the merchandise has been repaired or serviced other than by SII, or the failure to give notice of any defects within (5) five days after they are discovered shall result in a waiver of the breach of the warranty by purchaser and the warranty shall be deemed to have been fulfilled.
SII is in no way responsible for consequential and incidental damages including any and all economic loss arising out of the use of SII’s merchandise. SII shall not be liable for injury, or damages to property, other than the merchandise or related SII merchandise. SII’s obligation under the terms of this warranty are solely for the repair or replacement of defective merchandise, in whole or part, or at SII’s option, refund of the purchase price. The determination of liability of SII shall be solely within the discretion of SII after examination of the alleged defective merchandise by an authorized agent of SII. SII reserves the right to discontinue any model or change the specifications of purchased merchandise without notice. The discontinuance or change of specifications shall not create any liability on the part of SII with respect to sold merchandise ,or merchandise on order not incorporating a change even though delivered after such change. Purchaser acknowledges that SII has not made any representations on which purchaser has relied in making purchaser’s decision to buy the merchandise subject to these terms and conditions. Such decision by purchaser is based on purchaser’s own independent investigation and determination.
DEALER'S MAINTENANCE AND REPAIR
It is the responsibility of SII’s dealers to provide its customers with the service and maintenance necessary to maintain quality of the merchandise. SII dealers are required to cover up to 5% of the SII sales price for any maintenance, labor and repair costs on the merchandise. SII will supply the necessary parts, free of charge, for the merchandise within the warranty period.
Procedures for dealers performing warranty service on SII products are as follow:
1. Purchaser must provide the machine model and serial number ready and call SII Technical Service department at (310) 3705990 for assistance and service authorization. (The department is opened from 8:00 am to 5:00 pm Pacific Time, Monday through Friday). SII will then be able to properly diagnose and correct the problem in the most efficient way to minimize down time for the customer.
2. All warranty work performed by the dealers that require reimbursement from SII must be pre-approved by SII with an authorization number. SII will not reimburse any repair work done without pre-approved authorization.
3. SII will replace all defective parts under the (1) one-year warranty period at no charge. (Some promotional products may carry a (2) two-year warranty). Parts will be shipped via UPS ground, or equivalent mode of shipping. Additional cost incurred due to overnight or next day shipment will be at the dealer’s expense.
4. Since dealers are only responsible for labor up to 5% of the machine price under the warranty period, SII will reimburse for labor beyond this amount within the warranty period. All reimbursement cost must be calculated using $50/hr for labor and $25/hr + $0.33/mile for travel.
5. Defective parts must be returned upon request.
RETURNED MERCHANDISE
Excess or unused merchandise returned for credit will not be accepted without SII’s prior written authorization. SII reserves the right to decline all returns or to accept them subject to a minimum handling charge of 15% of the invoiced merchandise value. Even after SII authorizes the return of merchandise for credit, SII reserves the right to adjust credited amounts in accordance with the condition of the merchandise upon arrival in SII’s warehouse. SII does not offer exchange, refund, or issue credit for merchandise returned six (6) months or more after shipment. Credit for returned merchandise is issued only to the original purchaser and not to subsequent owners of the merchandise.
GENERAL
In the absence of a written acceptance of these terms and conditions by purchaser, acceptance by purchaser of any of the goods covered by a purchase order shall constitute an acceptance of the of these terms and conditions. SII’s failure to object to provisions contained in the purchaser’s order shall not be deemed a wavier of the terms and conditions hereof. No waiver, alteration or modification of these provisions shall be binding upon SII, unless acknowlegdged by SII in writing. SII’s salesmen have no authority to alter prices, terms of payment or general sales conditions. Any attempt to strike out or alter terms hereof is not be accepted bySII.
The validity, interpretation, and enforcement of these terms and conditions shall be governed by and construed exclusively under the laws of the State of California, excluding its conflicts of law rules. Any action or proceeding brought by either party to enforce the terms of this sales contract or arising out of this sales contract or in connection with this sales contract shall be brought in the Superior Court of the State of California for the County of Los Angeles or in the United States District Court for the Central District of California, and the prevailing party in such action or proceeding shall be entitled to recover its reasonable attorneys’ fees, expert witness fees, disbursements and costs of suit.