Terms and Conditions
for Sale of Goods
AJA Video Systems, Inc. (“Seller”) and the “Buyer” identified on the invoice (the “Invoice”) that refers to these Terms and Conditions for Sale of Goods (these “Terms and Conditions”) agree to be bound by these Terms and Conditions in connection with the goods described on the Invoice.
If Seller and Buyer have executed a separate agreement that applies to purchases of products (for example, a Direct Reseller Agreement or a Master Distributor Agreement), these Terms and Conditions do not supersede or modify the terms of such separate agreement between Buyer and Seller and if there is any conflict between the terms of such a separately executed agreement and these Terms and Conditions, the terms of Buyer’s separate signed agreement with Seller will apply. However, as further described in Section 16 below, these Terms and Conditions supersede and Seller hereby rejects any terms and conditions stated by Buyer in any purchase order, acknowledgment or otherwise that are different from, or in addition to, these Terms and Conditions.
Amount and Type of Products. Seller agrees to sell and Buyer agrees to buy the quantity and type of products described on the Invoice (the “Products”).
- Prices. The prices of the Products delivered will be as specified in the Invoice. All amounts stated in the Invoice and/or required to be paid under these Terms and Conditions are stated in, and will be paid in, U.S. Dollars. The prices do not include any applicable sales, use, value-added, excise and/or withholding taxes; customs duties; fees; charges; or import fees.
- Buyer will pay the fees and Buyer-approved expenses set forth in the Invoice on a net basis no later than thirty (30) days after Buyer’s receipt of the Invoice. Buyer will make all payments in US dollars by check, wire transfer or (if approved by Seller) credit card. Failure to pay an undisputed invoiced amount within ten (10) days after such payment is due will result in the unpaid amount bearing interest at the lower of 1.5% per month or the maximum rate permitted by law until paid in full, unless otherwise agreed to by Seller. Buyer will notify Seller in writing of any disputed invoiced amount within thirty (30) days of receiving the Invoice. Upon final resolution of any disputed invoiced amount, Buyer will remit payment to Seller within ten (10) days.
- In addition to the purchase price, Buyer will pay all sales, use, value-added, excise and/or withholding taxes; customs duties; fees; charges; or import fees imposed by any country, state or other political division required to be collected by Seller from Buyer in connection with the sale of the Products. If Buyer is legally entitled to an exemption from any sales, use, or similar transaction tax, Buyer is responsible for providing Seller with legally-sufficient tax exemption certificates for each applicable taxing jurisdiction before issuance of the Invoice.
- Delivery and Risk of Loss. All deliveries of Products will be made FOB Seller’s designated facility in Grass Valley, California (the “Delivery Point”) by a carrier selected by Seller. Unless otherwise expressly agreed to by Seller, Seller will deliver the Products to Buyer at the address specified in Buyer’s purchase order, using Seller’s standard methods for packaging and shipping Products. Buyer is responsible for the costs of shipping and insurance. Title to Products will pass to Buyer upon Seller’s delivery thereof to the carrier. Risk of loss or damage to any Product in transit, without regard to whether Seller paid the shipping charges or whether any third party is designated as consignee thereof, is Buyer’s, and Buyer is responsible for filing any claim with the carrier. Without limiting any of the terms above, Buyer will bear all duties, taxes and other official charges payable upon importation of the Products as well as any and all costs and risks of carrying out customs formalities.
- Inspection and Acceptance of Products. All sales of Product to Buyer are made on a one-way basis and Buyer has no right to return Product purchased under these Terms and Conditions subject to the terms of this Section 5. After receiving Products, Buyer shall inspect Products received under these Terms and Conditions within five (5) days of receipt (the “Inspection Period”) of Authorized Product and either accept or, if any Authorized Product is nonconforming (“Nonconforming Product”), reject the Nonconforming Product. Buyer will be deemed to have accepted Authorized Product unless it notifies Seller in writing of any such Nonconforming Product during the Inspection Period and furnishes written evidence or other documentation as required by Seller. Seller shall determine, in its sole discretion, whether Products are nonconforming. If Seller determines that Products are nonconforming, it shall either, in its sole discretion, replace the Nonconforming Product or refund the price paid for the Nonconforming Product. Buyer shall ship, at its expense and risk of loss, all Nonconforming Product to Seller. If Seller exercises its option to replace the Nonconforming Product, Seller shall, after receiving Buyer’s shipment of Nonconforming Product, ship to Buyer, at Seller’s expense, the replaced Products.
- Warranties. Seller provides end users of Products the limited warranty set forth in the Product documentation. This limited warranty for end users is not incorporated in these Terms and Conditions and does not apply to Buyer (except in the case that Buyer is also the end user of the Products). Buyer hereby acknowledges and agrees that it has not relied on any representations or warranties from Seller in entering into these Terms and Conditions. SELLER MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY WITH RESPECT TO THE PRODUCT, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT, OR ANY EXPRESS OR IMPLIED WARRANTY ARISING OUT OF TRADE USAGE OR OUT OF A COURSE OF DEALING OR COURSE OF PERFORMANCE.
- Intellectual Property. All documentation, specifications and other materials and intellectual property associated with the Products or their manufacture or repair will remain the property of Seller or its suppliers.
- LIMITATION OF LIABILITY. IN NO EVENT WILL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST REVENUES, OR OTHER INCIDENTAL DAMAGES, ARISING OUT OF THESE TERMS AND CONDITIONS OR THE USE OR INABILITY TO USE, OR THE DELIVERY OR FAILURE TO DELIVER, ANY PRODUCT, OR OUT OF ANY WARRANTY, BREACH OF CONTRACT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, AND EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD REASONABLY FORESEE SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY WILL REMAIN IN FULL FORCE AND EFFECT REGARDLESS OF WHETHER BUYER’S REMEDIES HEREUNDER ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
FURTHER, THE ENTIRE LIABILITY OF SELLER, AND THE SOLE AND EXCLUSIVE REMEDY OF BUYER, FOR ANY CLAIM OR CAUSE OF ACTION ARISING IN CONNECTION WITH THESE TERMS AND CONDITIONS (WHETHER IN CONTRACT, TORT, OR OTHERWISE) WILL NOT EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT WHICH IS THE SUBJECT OF SUCH CLAIM OR CAUSE OF ACTION. NO ACTION MAY BE BROUGHT BY BUYER AGAINST SELLER MORE THAN ONE (1) YEAR AFTER THE INVOICE DATE.
- Force Majeure. Seller will not be held responsible for any failure or delay in performance of any obligations under these Terms and Conditions where such performance is rendered impossible by any act of war, compliance with laws, governmental acts or regulations, fire, flood, earthquake, epidemic, strikes and other causes similar to those listed, in each case where failure to perform is beyond the control, and not caused by the negligence of, Seller.
- No Implied Waivers; Amendment Requirements. No failure or delay by either party in exercising any right, power or privilege under these Terms and Conditions will impair, prejudice or constitute a waiver of any such right, power or privilege, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
- Governing Law; Dispute Resolution. These Terms and Conditions will be construed and controlled by the laws of the State of California, without regarding to their conflict of laws principles. The parties expressly disclaim application of the United Nations Convention on Contracts for the International Sale of Goods. The parties hereby expressly submit and consent to the exclusive jurisdiction of and venue in the federal and state courts located in Sacramento, California. Each party agrees to service of process in accordance with the rules of the specified courts, and not to raise defenses of lack of personal jurisdiction or inconvenient forum.
- Severability. If any provision of these Terms and Conditions is held invalid, illegal or unenforceable, the parties will substitute a valid, legal and enforceable substitute provision that most nearly reflects the original intent and economic impact of the original provision, and all other provisions hereof will remain in full force and effect and will be liberally construed in order to carry out the intentions of the parties hereto as nearly as may be possible.
- Successors and Assigns; No Third Party Beneficiaries. These Terms and Conditions will be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Subject to the foregoing, no provision of these Terms and Conditions is intended to confer upon any person other than the parties hereto any rights or remedies hereunder.
- Headings. Headings used herein are for convenience only and will not in any way affect the construction of or be taken into consideration in interpreting these Terms and Conditions.
- Entire Agreement. Any terms and conditions stated by Buyer in any purchase order, acknowledgment or otherwise that are different from, or in addition to, these Terms and Conditions, will be of no force and effect, and no course of dealing, usage of trade, or course of performance will be relevant to explain or modify any term expressed in these Terms and Conditions.