Sales Terms and Conditions. The following terms and conditions shall be incorporated by reference into and shall control any purchase order or sale whereby Distributor purchases Products from Manufacturer pursuant to this Agreement: 5.1. The Distributor agrees to purchase from Manufacturer the Products as set forth in written purchase orders to be submitted to Manufacturer. Distributor shall attach a Total System Specification to each purchase order and Manufacturer's confirmation of the purchase order shall be deemed an approval of such Total System Specification. 5.2. Manufacturer agrees to sell Products to Distributor at the price as set forth in Exhibit 1.14 hereto and to accept each purchase order submitted by Distributor pursuant to Section 5.1 hereof provided that the Total System Specification is acceptable to Manufacturer. The prices set forth in Exhibit 1.14 may be amended from time to time by mutual written agreement of Manufacturer and Distributor. To ensure an efficient sales process Distributor agrees to submit a proposed Total System Specification to Manufacturer for review and comment prior to executing a final purchase agreement with an End User. 5.3. The purchase price shall be paid by Distributor as follows: thirty percent (30%) shall be paid within thirty (30) calendar days from the date of order confirmation by Manufacturer; fifty percent (50%) shall be paid within thirty (30) calendar days from the date of delivery of the Product; and twenty percent (20%) shall be paid within thirty (30) calendar days as from the date of the issuance of the Certificate of Acceptance (as defined hereinafter). 5.4. Delivery of the Products ordered and accepted for all End Users shall be made FOB End User site on or around the delivery date set forth in the purchase order confirmation (the "Delivery Date"). Manufacturer shall arrange for shipping and insurance on each shipment of Products at the expense of Manufacturer. The date upon which the shipment of Products under such purchase order is actually made by Manufacturer shall be referred to as the "Shipment Date." Distributor shall have the right to cancel any purchase order, without penalty, if the Products covered by such purchase order have not been shipped (or, for orders for Japan, delivered) within 90 days after the Delivery Date for such purchase order. 5.5. Distributor shall inspect the shipped Products promptly on their arrival at the Site or when such Products otherwise first come into the possession of Distributor and shall promptly give written notice to the Manufacturer of any claim that the Products do not conform with the terms of the accepted purchase order. 5.6. Manufacturer warrants each Product against defective material and workmanship for a period of twelve (12) months from the Acceptance Date. Distributor shall make all reasonable good faith efforts to obtain the Certificate of Acceptance, such Certificate of Acceptance shall not be unreasonably withheld. Distributor shall, on behalf of Manufacturer, promptly repair or replace, at its option, any defective Product or component thereof during the warranty period, and provide labor in connection therewith, at the location of the end-user at which such Product is installed. Manufacturer shall provide "third line support" in relation to each Product during its warranty period in accordance with Exhibit 2.9 hereof. Manufacturer shall supply replacement Products or components thereof as may be required by Distributor for performance of warranty obligations, without charge. In addition, Manufacturer shall reimburse Distributor for costs incurred plus a per diem of $40 per employee time spent in relation to warranty work. This warranty is contingent upon proper use in the application for which the Products are intended and shall be void as to (a) Products which have been modified or altered without the approval of Manufacturer; (b) Products which have been subjected to unusual physical stress, negligence or accident; (c) Products on which the original identification marks have been removed or altered; or (d) Products used in contravention of Manufacturer' instructions, recommendations, or warnings. 5.7. Each purchase order and the sales terms and conditions stated in Sections 5.1 through 5.6 hereof shall be a binding contract at the time such purchase order is confirmed in writing by Manufacturer at Manufacturer' home office in San Diego, California and are intended by the parties as the final expression of their agreement and as a complete and exclusive statement of its terms. In the event of a conflict between the purchase order and the foregoing terms and conditions, the foregoing terms and conditions shall control. These sales terms and conditions shall not be modified, varied, qualified, supplemented or interpreted by any prior course of dealing between Manufacturer and Distributor or by any usage of trade. No waiver, alteration or modification of these terms and conditions whether on Distributor's purchase order or otherwise shall be valid, and additional or different terms and terms and conditions by causing one of its authorized officers to execute a signed writing which specifically sets forth such additional or different terms and conditions. 5.8. Distributor shall obtain from each end-user of the Products an executed copy of a software license substantially similar to Manufacturer's standard software license attached as Exhibit 5.8 hereto.
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Sales Terms and Conditions. The following A. This Agreement shall govern the terms and conditions of Purchase Orders. Any conflict between the terms of this Agreement and any Purchase Order shall be incorporated resolved in favor of the terms hereof, particularly Addendum B hereof. The Parties acknowledge and agree that the terms and conditions of this Agreement (i) apply to any open and current Purchase Orders issued prior to the date hereof and to the delivery and sale of any Product pursuant thereto and (ii) that this Agreement supersedes any prior agreement with respect to such open and current Purchase Orders.
B. The terms and conditions set forth in this Agreement without regard to Addendum C hereto shall govern the Sale (as defined below) of Products by reference into Supplier to Distributor. The terms and conditions of sale set forth in such Addendum C shall control govern a Customer Sale (as such term is defined in Addendum C) of Products by Distributor to its customers (“Customer” or “Customers”). Supplier shall not be liable or responsible for any purchase order representations, warranties or sale whereby other promises made by Distributor purchases to any Customers that conflict with or are beyond the scope of the Supplier Terms.
C. With respect to sales and delivery of Products from Manufacturer pursuant by Supplier to this AgreementDistributor:
5.1. The (i) Supplier shall retain absolute ownership interest in Products until a Sale has occurred.
(ii) Supplier shall deliver Products purchased by Distributor agrees to purchase from Manufacturer the Delivery Point at the sole cost and expense of the Distributor (for the avoidance of doubt, Distributor shall pay any freight, handling, delay or associated or similar costs related to delivery of Products to Distributor).
(iii) Supplier shall deliver Product inventory to Distributor on a quarterly basis but shall have the ability to adjust its delivery schedule in accordance with the Reports submitted by Distributor as set forth in written purchase orders to be submitted to Manufacturer. Distributor shall attach Section 8 below.
D. For purposes of this Agreement, a Total System Specification to each purchase order sale of Product and Manufacturer's confirmation the passing of the purchase order title and risk of loss (a “Sale”) shall be deemed an approval to have occurred upon delivery of such Total System Specification.
5.2. Manufacturer agrees to sell Products Product to Distributor at the price as set forth provided in Exhibit 1.14 hereto and to accept each purchase order submitted by Distributor pursuant to Section 5.1 hereof provided that the Total System Specification is acceptable to Manufacturer. The prices set forth in Exhibit 1.14 may be amended from time to time by mutual written agreement of Manufacturer and Distributor. To ensure an efficient sales process Distributor agrees to submit a proposed Total System Specification to Manufacturer for review and comment prior to executing a final purchase agreement with an End User.
5.3. The purchase price shall be paid by Distributor as follows: thirty percent (30%) shall be paid within thirty (30) calendar days from the date of order confirmation by Manufacturer; fifty percent (50%) shall be paid within thirty (30) calendar days from the date of delivery of the Product; and twenty percent (20%) shall be paid within thirty (30) calendar days as from the date of the issuance of the Certificate of Acceptance (as defined hereinafter6(C).
5.4. Delivery of the Products ordered E. Distributor shall manage distribution and accepted for all End Users shall be made FOB End User site on or around the delivery date set forth Sales in the purchase order confirmation (the "Delivery Date"). Manufacturer Territory for Products; once Distributor is qualified, in Supplier’s good-faith exercise of discretion, Distributor shall arrange provide customer service and support for shipping Products on a “best-in-class” basis as specified in this Agreement, whether through Distributor’s Retail Locations or other channels and insurance on each shipment of Products at the expense of Manufacturer. The date upon which the shipment of Products under such purchase order is actually made by Manufacturer shall be sources referred to as the "Shipment DateDistributor by Supplier." Distributor shall have the right to cancel any purchase order, without penalty, if the Products covered by such purchase order have not been shipped (or, for orders for Japan, delivered) within 90 days after the Delivery Date for such purchase order.
5.5. Distributor shall inspect the shipped Products promptly on their arrival at the Site or when such Products otherwise first come into the possession of Distributor and shall promptly give written notice to the Manufacturer of any claim that the Products do not conform with the terms of the accepted purchase order.
5.6. Manufacturer warrants each Product against defective material and workmanship for a period of twelve (12) months from the Acceptance Date. Distributor shall make all reasonable good faith efforts to obtain the Certificate of Acceptance, such Certificate of Acceptance shall not be unreasonably withheld. Distributor shall, on behalf of Manufacturer, promptly repair or replace, at its option, any defective Product or component thereof during the warranty period, and provide labor in connection therewith, at the location of the end-user at which such Product is installed. Manufacturer shall provide "third line support" in relation to each Product during its warranty period in accordance with Exhibit 2.9 hereof. Manufacturer shall supply replacement Products or components thereof as may be required by Distributor for performance of warranty obligations, without charge. In addition, Manufacturer shall reimburse Distributor for costs incurred plus a per diem of $40 per employee time spent in relation to warranty work. This warranty is contingent upon proper use in the application for which the Products are intended and shall be void as to (a) Products which have been modified or altered without the approval of Manufacturer; (b) Products which have been subjected to unusual physical stress, negligence or accident; (c) Products on which the original identification marks have been removed or altered; or (d) Products used in contravention of Manufacturer' instructions, recommendations, or warnings.
5.7. Each purchase order and the sales terms and conditions stated in Sections 5.1 through 5.6 hereof shall be a binding contract at the time such purchase order is confirmed in writing by Manufacturer at Manufacturer' home office in San Diego, California and are intended by the parties as the final expression of their agreement and as a complete and exclusive statement of its terms. In the event of a conflict between the purchase order and the foregoing terms and conditions, the foregoing terms and conditions shall control. These sales terms and conditions shall not be modified, varied, qualified, supplemented or interpreted by any prior course of dealing between Manufacturer and Distributor or by any usage of trade. No waiver, alteration or modification of these terms and conditions whether on Distributor's purchase order or otherwise shall be valid, and additional or different terms and terms and conditions by causing one of its authorized officers to execute a signed writing which specifically sets forth such additional or different terms and conditions.
5.8. Distributor shall obtain from each end-user of the Products an executed copy of a software license substantially similar to Manufacturer's standard software license attached as Exhibit 5.8 hereto.
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