TERMS & CONDITIONS OF SALE
For purposes of these Terms and Conditions of Sale, the term “contract” shall mean an agreement between Superior Co.,Ltd. (hereinafter referred to as “Superior”) and Buyer arising as a result of Buyer’s submission of an order for Superior products or products distributed by Superior and Superior’s acceptance of said order. Any such contract shall be deemed to incorporate and be governed by these Terms and Conditions. These Terms and Conditions shall take precedence over any Terms and Conditions, which appear in Buyer’s order or in any document incorporated by reference in Buyer’s order. No Term or Condition of Buyer’s order additional to or different from these Terms and Conditions shall become part of the contract unless explicitly referenced and agreed to in writing by an authorized executive of Superior at its principal office in Massachusetts. Retention by Buyer of any products delivered by Superior, or payment by Buyer of any invoice rendered hereunder shall be conclusively deemed acceptance of these Terms and Conditions. Superior failure to object to any provision contained in any communication from Buyer shall not be construed as a waiver of these Terms and Conditions or as an acceptance of any such provision.
By submitting an order to Superior, Buyer agrees to be subject to these Terms and Conditions of Sale in their entirety. All orders must be bona fide commitments showing definite prices and quantities and mutually agreed to ship dates. If a Buyer qualifies for a quantity purchase discount, Buyer shall issue a Blanket Purchase Order for products to be delivered over a period of 15 months from date of acceptance by Superiorof Buyer’s order. To schedule products for shipment, a Purchase Order Release must be issued by Buyer scheduling at least 20% of the total quantity specified on the Blanket Purchase Order at a mutually agreed to shipping date.
2. PRICES AND TAXES
Prices do not include federal, state, or local taxes, including without limitations sales, use or excise taxes, now or hereafter enacted, applicable to the products sold in this transaction, which taxes may, in Superior’s discretion, be added by Superior to the sales price or may be billed separately and which taxes will, in any event, be paid by Buyer unless Buyer provides Superior with a proper tax exemption certificate. Prices for quantity purchase buyers are the list price in effect on the date of the Purchase Order Release, times the appropriate discount level will be adjusted in accordance with Superior’s Quotation. The resultant lower discount shall apply to all shipments made to Buyer during such fifteen (15) month period. The appropriate adjustment and resulting payment by Buyer will be made promptly after the end of such fifteen (15) month period.
3. DELIVERY AND SHIPMENT
All products will be tendered and shipped F.O.B. Superior’s plant in Massachusetts and may be so tendered in several lots. In the absence of specific instructions, Superior will select the carrier and ship “collect”, but shall not be deemed thereby to assume any liability in connection with the shipment nor shall the carrier be construed to be the agent of Superior. Buyer must provide its own insurance. Title and risk of loss or damage to all products sold hereunder shall pass from Superior to Buyer upon delivery by Superior to the possession of the carrier, provided that Superior reserves a purchase money security interest in the products. Any claims for loss, damage or mis-delivery thereafter shall be filed with the carrier.
4. TERMS OF PAYMENT
Unless otherwise stated on Superior’s invoice, terms of payment shall be net thirty (30) days from the date of invoice. If at any time Superior, in its sole discretion, determines that payment in advance would be prudent, Superior may require full or partial payment in advance, and if such requirements are not met, may cancel the order or any part thereof and receive reasonable cancellation fees. If Buyer fails to pay the price or any other payment due hereunder when due, Superior may recover, in addition to the price or payment, interest thereon at the rate of 1 ½% per month where lawful, otherwise the maximum lawful monthly interest rate, and reasonable attorney’s fees and collection costs. Terms of payment hereunder may be changed by Superior at any time.
5. SECURITY INTEREST
Buyer hereby grants to Superior a security interest in all Superior products sold to Buyer as security for the due and punctual performance by Buyer of all of its obligations hereunder. Buyer agrees to execute such documents to evidence and perfect said security interest as Superior may require. Buyer hereby appoints any officer of Superior as its duly authorized agent for the sold purpose of executing all such documents on Buyer’s behalf, including, without limitation, financing statements on Form UCC-1, and for the purpose of taking any and all other action deemed necessary by Superior, in its sole discretion, for the perfection and enforcement of the security interest granted hereby.
Superior shall not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the control of Superior, including, by way of illustration but not limitation, war (whether an actual declaration thereof is made or not), sabotage, insurrection, riot or other act of civil disobedience, act of a public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof, judicial action, labor dispute, accident, fire, explosion, floods, storm or other act of God, shortage of labor, fuel, raw material or machinery or technical failure where Superior has exercised ordinary care in the prevention thereof. If any such contingency occurs, Superior may allocate production and deliveries among Superior’s customers.
In almost every case, the warranty on products purchased from Superior shall be that of the original manufacturer, but in no cases shall be less than 90 days. A copy of the complete warranty is available upon written request from the respective manufacturer, and may also be found included in the packaging of some products. All in-warranty repairs may be handled through Superior provided a Return Material Authorization is given prior to return of any merchandise. All out-of-warranty repairs may be handled through Superior at a charge assessed by the manufacturer plus reasonable shipping and handling costs assessed by Superior. Such cost shall be quoted to the Buyer prior to return of merchandise to the extent practical.
8. EXCHANGES AND REFUNDS
Cash Refunds within seven (7) days only. After seven (7) days and within thirty (30) days, merchandise credit only. After thirty (30) days, merchandise credit only at the discretion of Superior. There will be a 20% restocking charge on any item returned or special orders not taken except for defective merchandise or unless waived by Superior. No refunds or exchanges on software, computers, or special orders. Refunds do not apply to freight. All returned items must be in like new condition in their original packaging. Superior Electronics, Inc. may reject any returned merchandise if it is determined that the goods do not meet the conditions of new and/or original packaging.
9. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL RMA’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT OR RMA’S PERFORMANCE OR ASSERTED FAILURE TO PERFORM THEREUNDER, IN CONTRACT, IN TORT (INCLUDING NEGLEGENCE), OR OTHERWISE, EXCEED THE PURCHASE PRICE OF THE PRODUCTS, AND IN NO EVENT SHALL RMA BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR TORT DAMAGES RESULTING FROM LOSS OF USE, LOSS OF PROFITS, LOSS OF BUSINESS OR LOSS OF GOODWILL.
10. CANCELLATION AND RESCHEDULING
Orders accepted by Superior may be cancelled or rescheduled by Buyer only with the written consent of Superior (which consent Superior may withhold for any reason) and upon payment of the then currently published cancellation or rescheduling charges. Superior shall have the right without penalty or payment to cancel any order accepted, or to refuse or delay the shipment thereof, (i) if Buyer fails to make promptly any payment due to Superior or to meet any other reasonable requirements established by Superior, (ii) if any act or omission to act of Buyer delays Superior’s performance, or (iii) if Buyer’s credit becomes impaired in such event, Superior shall be entitled to receive reimbursements for its reasonable and proper cancellation charges.
There will be no rescheduling charges if deliveries scheduled beyond 90 days from the date Superior is notified of the rescheduling are rescheduled, or if deliveries from 30 to 90 days are rescheduled, provided they are rescheduled within the 90 day period from the date when Superior is notified of the rescheduling. If other than above, a 5 percent rescheduling charge may be invoiced to Buyer at Superior’s option. Products scheduled to ship within a 30-day period cannot be rescheduled.
12. NON-WAIVER OF DEFAULT; REMEDIES
In the event of any default by Buyer under this or any other contract between Superior and Buyer, Superior may decline to make further shipments. If Superior elects to continue to make shipments, Superior’s action shall not constitute a waiver of any default by Buyer or in any way affect Superior’s legal remedies for any such default. All Superior rights and remedies, whether evidenced hereby or by any other contract or document, shall be cumulative and nonexclusive and may be singularly or concurrently.
13. APPLICABLE LAW
The validity, performance and construction of the contract shall be governed by the laws of the Commonwealth of Massachusetts.