DeltaTrak (“Seller”) Terms of Sale
These terms of sale govern exclusively all product purchases and prevail over any additional or inconsistent terms of sale in any buyer document, which are expressly objected to and shall not be binding upon Seller unless specifically accepted in writing by Seller's authorized representative.
Prices are subject to change without notice. No math or clerical errors are binding on DeltaTrak. Prices do not include any sales, excise, or other tax by any federal, state or local authority. Buyer shall reimburse any taxes imposed upon sales or shipments unless DeltaTrak receives an acceptable tax exemption certificate. All prices and other Terms of Sale shall be kept confidential except to the extent Buyer is legally required to disclose.
DeltaTrak is not liable for delay or default in delivery resulting from any cause beyond DeltaTrak reasonable control, including, but not limited to, governmental action, strikes or other labor troubles, fire, damage or destruction of goods, wars (declared or undeclared), acts of terrorism, manufacturers' shortages, availability or timeliness of transportation, materials, fuels, or supplies, and acts of God (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event: (a) the time for DeltaTrak performance shall be extended reasonably and the Parties shall adjust all affected dates accordingly; (b) the purchase price shall be adjusted for any increased costs to DeltaTrak resulting from such Force Majeure Event; and (c) Buyer shall not be entitled to any other remedy.
Partial shipments are permitted at DeltaTrak discretion.
Buyer shall indemnify, defend, and hold Seller its officers, directors, employees and agents harmless from any and all costs (including attorneys' and accountants' fees and expenses), liabilities and damages resulting from or related to any third party (including Buyer's employees) claim, complaint and/or judgment arising from Buyer's use of any goods furnished hereunder, as well as any negligent, intentional, or tortious act or omission of Buyer or any material breach by Buyer of these Terms of Sale.
Title and Risk
When goods are delivered to Buyer, however delivered, the F.O.B. point shall be Buyer's designated delivery site where title and risk of loss shall pass to Buyer. All claims for shortage of goods or for loss or damage to goods as to which Seller has the risk of loss shall be waived unless Buyer, within 10 calendar days after receipt of the short or damaged shipment, gives Seller written notice fully describing the alleged shortage or damage. Partial shipments are permitted at Seller's discretion.
Changes and Returns. No credit for returns shall be given without DeltaTrak written authorization. All returns are subject to a 15% restocking charge.
Buyer shall not export or re-export, directly or indirectly, any part of the goods or related technology obtained from DeltaTrak except in accordance with applicable export laws and regulations of the U.S. Further, a Buyer that is a non-U.S. company or citizen shall similarly limit any export or re-export activity to that which would be deemed compliant with U.S. export laws and regulations if performed by a U.S. company or citizen.
Buyer shall pay DeltaTrak all expenses of collection, suit, or other legal action brought as a result of the commercial relationship between them, including, but not limited to, all attorneys' fees, and collection costs incurred pre-suit, through trial, on appeal, and in any administrative or bankruptcy proceedings.
All disputes arising out of or related to the business relationship between Buyer and DeltaTrak shall be governed exclusively by the laws of California, excluding its conflicts of laws rules. Any legal action arising under or related to this Agreement shall be brought in Alameda County, California, and any right to object to such venue or to assert the inconvenience of such forum is waived. The Parties waive all right to a jury trial.
If Buyer fails to comply with these Terms of Sale, DeltaTrak may terminate or restrict any order immediately upon notice to Buyer. Buyer certifies that it is solvent and that it will advise DeltaTrak immediately if it becomes insolvent. Buyer shall send DeltaTrak written notice of any changes in the form of ownership of Buyer's business within 5 days of such changes. Buyer and DeltaTrak are the only intended beneficiaries of this document, and there are no third party beneficiaries.
The invalidity or unenforceability of all or part of these Terms of Sale will not affect the validity or enforceability of the other Terms of Sale. The parties agree to replace any void or unenforceable term with a new term that achieves substantially the same practical and economic effect and is valid and enforceable.
These Terms of Sale shall survive termination, cancellation and completed performance of any sale as long as necessary to allow the aggrieved party to fully enforce its rights.