Any order for the purchase of products from Smart Products, Inc., aka Smart Pumps, Inc. (Seller) shall be subject only to the terms and conditions set forth herein or on the face of Seller's invoice, quote, or acknowledgement forms, as applicable, or by mutual written agreement of the parties hereto. The terms and provisions hereof take precedence over any additional terms and provisions of Buyer. None of these terms and conditions may be modified or otherwise altered except by a written instrument signed by an officer of Seller.SELLER HEREBY OBJECTS TO ANY TERMS AND CONDITIONS THAT MAY BE CONTAINED IN ANY FORM ISSUED BY BUYER AND NOTIFIES BUYER THAT THEY ARE HEREBY EXPRESSLY REJECTED IN THEIR ENTIRETY. SELLERS ACT OF DELIVERING GOODS TO BUYER SHALL NOT BE DEEMED AN ACCEPTANCE OF SUCH TERMS OR CONDITIONS.
Any quotation issued by Seller shall expire thirty (30) days after the printed date of the quote and may be reinstated only by written confirmation by seller. Seller reserves the right to correct clerical errors. Seller's products are subject to continuous improvement. To achieve this goal, Seller reserves the right to change features, processes, materials, testing and other specifications as necessary.
Prices are F.O.B. Seller's plant in Morgan Hill, California, and risk of loss passes to Buyer upon the earlier of delivery or placement with a carrier. Seller retains title of all goods until full payment in good funds is received by Seller.
Terms of payment, unless otherwise expressly agreed upon in writing, are as set forth on the face hereof or as set forth on the face of Seller’s invoice, quote, or acknowledgement forms, as applicable. All payments shall be made in U.S. currency. Payments shall not prejudice claims on account of omissions or shortages in shipment, but no such claim will be allowed unless made within 96 hours after receipt for the applicable amount by Buyer. Payment terms are Net 30. Should Buyer not pay any amount when due, a finance charge of 1.5% per month shall be charged. Should such charge be deemed unenforceable or contrary to law, the finance charge shall be the maximum permitted by law. A fee of $25 shall be assessed for all dishonored checks.
Buyer's receipt and possession of the goods constitutes its acknowledgment that it has accepted the goods, unless Buyer notified Seller to the contrary, in writing, within four (4) business days of receipt of the goods. Buyer's use of the goods constitutes a full and complete acceptance of the goods. Buyer has an obligation to ascertain the conformance of the goods prior to installation. Therefore, Seller will not accept return of, nor issue credit for, any incorrect goods which bears the appearance of having been installed, totally or in part.
Products are custom assembled and therefore are not returnable except for non-conformance. Non-conforming product returns will not be accepted without an RMA# (Returned Material Authorization number) prior to Seller receiving any returned goods.
Should Buyer not pay any amount when due, a finance charge of 1.5% per month shall be charged. A fee of $25 shall be assessed for all dishonored checks.
Shipping dates are approximate only. Seller is not responsible for delays in or failure to complete the production, shipment or delivery of Buyer's order caused by any event beyond Seller's control including, without limitation, acts of God, fire, inclement weather, labor disputes, changes in order specifications, failure of shipping facilities or Buyer's acts or omissions.
Orders are not subject to cancellation or modification, in whole or in part, after Seller's acceptance, except with Seller's express written consent, and upon payment of a cancellation charge which will cover all costs incurred by Seller to time of cancellation. If Buyer cancels the order without Seller's acceptance, the Buyer agrees to pay all costs incurred by Seller.
If Buyer fails to make payment in full when due, Buyer shall be responsible for all collection costs incurred by Seller including attorneys’ fees and court costs.
Buyer understands and acknowledges that Seller is not required by law to maintain an affirmative action program (AAP), does not maintain an AAP and is not required to implement an AAP as a term of this transaction.
If any portion of these "Terms and Conditions of Sale" are deemed to be unlawful, unenforceable or unconstitutional the remaining terms and conditions shall be unaffected and shall remain in full force and effect.
These terms and conditions, together with Seller's quote, invoice and acknowledgement, as applicable, contain the entire understanding of the parties with regard to the subject matter contained herein or therein, and supersede all prior agreements or understandings between or among any of the parties hereof, whether written or oral.
These terms and conditions shall be deemed entered into in Santa Clara County, California, and shall be governed and construed in accordance with the laws of the State of California. Any action arising out of these Terms shall be instituted only in a California court or in the Northern District of the United States District Court.
The goods sold by Seller under these Terms of Sale are warranted to be free from defects in workmanship and materials for 6 months during which time Seller shall repair or replace any defective goods; provided, however, that such warranty shall not apply to any goods that have been tampered with, dismantled, misused or used beyond any stated specifications or useful life, neglected, improperly installed, handled or used, repaired, altered or damaged.
IT IS EXPRESSLY AGREED THAT THIS WARRANTY WILL BE IN LIEU OF ALL WARRANTIES OF FITNESS AND IN LIEU OF THE WARRANTY OF MERCHANTABILITY. Buyer affirms that Buyer has not relied on Seller's skill or judgment to select or furnish goods for any particular purpose.
NO REPRESENTATIONS OF FITNESS FOR ANY PARTICULAR PURPOSE SHALL BE IMPLIED FROM SPECIFICATIONS, IF ANY, SET FORTH HEREIN, OR BY THE NATURE OF THE GOODS. NO AGENT, EMPLOYEE, OR REPRESENTATIVE OF SELLER HAS ANY AUTHORITY TO BIND SELLER TO ANY AFFIRMATION, REPRESENTATION, OR WARRANTY CONCERNING THE GOODS SOLD BY SELLER EXCEPT AS IDENTIFIED ON THE FACE OF SELLER'S QUOTATION, ACKNOWLEDGEMENT, AND/OR INVOICE, AS APPLICABLE.
Buyer's remedies in the event Seller breaches the foregoing warranty shall be limited to repair or replacement of the defective goods or refund of the purchase price, at Seller's option.
IN NO EVENT SHALL BUYER BE ENTITLED TO RECOVER INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF USE, LOST PROFITS OR LOST WAGES, WHETHER OR NOT SELLER KNEW SUCH DAMAGES MIGHT BE INCURRED. In no event shall Seller be liable for any sum greater than the purchase price.