INVOICE:
All orders are subject to acceptance by AES.
Orders may not be cancelled or rescheduled without AES’s written consent.
AES may designate certain orders as non-cancelable, non-refundable
(“NCNR”), which when so designated on the front page of the Invoice
the NCNR shall prevail and supersede any inconsistent terms and conditions
contained herein or elsewhere.
PRICES:
AES quoted prices are valid and are those specified on the front page
of the Invoice. Prices quoted are for products only and do not include
any transportation and insurance costs, handling, duties and any and
all taxes, charges and levies imposed by any government and/or non-government
agency.
AES reserves the right to modify payment terms prior to shipment,
require payment in advance or delay or cancel any shipment or order
by reason of Customer’s creditworthiness or should Customer fail to
fulfill any obligation therein.
PAYMENT:
Payment of the Invoice shall be paid in full, without offset or deduction.
In the event Customer has been extended payment terms and payment
is not received within the stipulated delay, Customer shall pay to
AES interest calculated at a rate of 1.5% per month on the balance
owing from the due date and any and all attorney fees and collection
costs.
DELIVERY AND
TITLE:
Delivery terms are FOB (Free on Board) from AES shipping point or
EXW (EX Works as defined in Incoterms 2011) from AES facility and
Customer is responsible for all charges. Title and risk of loss of
sold products pass from AES to Customer on shipment from AES’s facility
to the carrier. Customer is responsible for all shipping, handling,
delivery, insurance and any and all applicable charges. Selection
of the carrier and delivery route shall be made by AES unless specified
by Customer. Customer acknowledges delivery dates are estimates only
and AES is not liable for delays in delivery. AES reserves the right
to make partial shipments and Customer will accept delivery and pay
for the products delivered. A delayed delivery of any part of an order
does not entitle Customer to cancel other deliveries.
Furthermore, AES will not be liable for any failure or delay in its
performance or in the delivery or shipment of products, or for any
damages suffered by Customer by reason of such failure or delay, when
such failure or delay is caused by, or arises in connection with,
any fire, flood, accident, riot, earthquake, severe weather, war,
acts of terrorism, governmental interference or embargo, strike, shortage
of labor, fuel, power, materials or supplies, delay in delivery by
AES’s suppliers or any other cause or causes beyond AES’s reasonable
control. AES reserves the right to cancel without liability any order,
the shipment of which is or may be delayed for more than 30 days by
reason of any such cause. AES reserves the right to allocate in its
sole discretion among other customers or potential customers, or defer
or delay the shipment of, any product which is in short supply.
ACCEPTANCE
OF PRODUCTS AND PRODUCT RETURNS:
Customer must notify AES in writing of any damage, shortage, or other
discrepancy to product within 10 days after delivery. After the 10th
day Customer is deemed to have accepted the product and may not revoke
acceptance. Customer cannot return product without a Return Material
Authorization ("RMA") number - please see ‘AES Product Return Policy”
for details. It is a strict requirement for the issuance of an RMA
that the Customer provide a detailed written failure analysis report.
AES may at its sole discretion refuse to issue an RMA for return of
the goods or require that Customer pay to AES a restocking fee, which
said restocking fee will be 20% of the Invoice Price.
In addition and at AES’s discretion, AES will return all product(s)
not eligible for return to Customer freight collect, or hold product
for Customer’s account at Customer’s expense.
In the event Customer refuses to accept tender or delivery of any
product or returns a product without authorization from AES, such
product will be held by AES awaiting Customer’s instructions for 20
days, after which AES may deem the product abandoned and dispose of
them as it sees fit, without crediting Customer’s account.
WARRANTY :
The warranty applies to all electronic components sold by AES, which
are operated in accordance with the product and operational specifications.
AES agrees to transfer to Customer whatever transferable warranties
AES receives from the manufacturer of products sold to Customer.
AES extends a one year limited warranty for the products it sells.
Nevertheless if product does not meet manufacturer's specifications,
AES has the option to (a) repair the product, (b) replace the product
at no cost to Customer; or (c) refund Customer's purchase price.
This warranty is contingent upon proper storage and handling of the
product and does not cover products that have been subjected to physical
abuse or electrical stress from improper handling and storage of Electro
Static Discharge (“ESD”) sensitive products. All ESD sensitive products
must be stored per manufacturer’s recommendations. In the event the
product fails a test report, this test report and product must be
sent to AES for evaluation along with a copy of Customer’s ESD storage
and handling procedure, subject to AES’s ACCEPTANCE OF PRODUCTS AND
PRODUCT RETURNS policy as stated herein.
In addition thereto, Customer's obligations and AES’s remedies
with respect to defective or nonconforming products, are solely and
exclusively as stated herein. No warranty will apply if the product
has been subject to misuse, static discharge, improper storage or
handling, non-adherence to ESD storage and handling procedures, neglect,
accident, modification, or has been soldered or altered in any way
whatsoever.
LIMITATION
OF LIABILITY:
CUSTOMER’S EXCLUSIVE REMEDY SHALL BE LIMITED TO THE PURCHASE PRICE
AS STIPULATED IN THE INVOICE AND AES’S TOTAL LIABILITY FOR ANY AND
ALL LOSSES AND DAMAGES ARISING OUT OF ANY CLAIM WHATSOEVER, WHETHER
THE CLAIM IS BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT, TORT,
NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, SHALL NOT
EXCEED THE PURCHASE PRICE OF THE GOODS AS STIPULATED IN THE INVOICE
IN RESPECT TO WHICH THE CLAIM ARISES OR, AT AES’S OPTION, THE REPAIR
OR REPLACEMENT OF THE GOODS. IN NO EVENT SHALL AES BE LIABLE FOR ANY
DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL DAMAGES OR PUNITIVE
DAMAGES RESULTING FROM ANY CLAIM, INCLUDING BUT NOT LIMITED TO, LOSS
OF PROFITS, LOSS OF REVENUE, BUSINESS INTERRUPTION COSTS, REMOVEAL
COSTS, REINSTALLATION COSTS, REPROCUREMENT COSTS, LOSS OF DATA, PROMOTIONAL
OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO REPUTATION OR LOSS
OF COSTUMER BUSINESS LOSSES, DAMAGE TO PROPERTY, OR ANY AND ALL LIABILITIES
WHATSOEVER OF THE CUSTOMER AND/OR CUSTOMER’S BUYER OR THIRD PARTY
CLAIMS.
AES is not liable for, and Customer assumes full liability for, all
personal injury and property damage connected with the handling, transportation,
possession, processing, repackaging, further manufacture, or other
use or resale of product, whether the products are used along or in
combination with any other material, devices, components or products.
If any provision contained in this limitation of liability is, for
any reason, held to be invalid or unenforceable in any respect under
the laws of the competent jurisdiction elected herein, Customer agrees
that AES’s total liability for any and all damages, losses, or causes
of action of any kind or nature whatsoever shall be limited to actual
direct damages without regards to any punitive or exemplary damages
provided by any such applicable law.
FORCE MAJEURE:
AES is excused from performance of any obligations and shall not be
liable for delays in delivery or for failure to perform if its failure
or delay of performance is caused by events or conditions beyond AES’s
reasonable control, including without limitation, acts of God, acts
of nature, natural or artificial disaster, acts of the public enemy,
quarantine restrictions, expropriation or confiscation of facilities,
compliance with any order of any governmental authority, industrial
disturbances, blockades, insurrections, arrest and restraint of people
or rulers, civil disturbances, boycotts, acts or omissions of Customer
or civil or military authorities, shortage of product, acts or omissions
of other parties, fire, strike, lock outs, landslide, lightning, wash
outs, tornadoes, hurricane, windstorm, explosion, epidemic, flood,
storm, earthquake, riot, war, act of terrorism, breakage or accident
of machinery or equipment, delays in transportation, or inability
to obtain necessary labor, materials, or supplies or any occurrence
related in any way to computer issues in any way encompassing the
failure of information technology to accurately process date/time
data including, but not limited to , calculating, comparing, and sequencing
from, into, and between a leap year, new year or the failure of the
internet, router or any other equipment or connection that can cause
a failure in AES’s computer system to accurately process data, or
a malicious computer code, virus, “bug”, “worm” or other similar technological
code or event that can cause a failure in AES’s computer system to
process data. In the event of any delay, the contractual date of delivery,
if any, shall be extended for a period equal of the time lost as a
consequence of the delays without penalty to AES.
USE OF PRODUCTS:
Products are not authorized for use in critical safety or other applications
where a failure may reasonably be expected to result in personal injury,
loss of life, or catastrophic property damage. If Customer uses or
sells the product for use in any such applications, Customer acknowledges
that such use or sale is at Customer's sole risk.
INTELLECTUAL
PROPERTY:
Nothing herein contained shall be construed to grant any rights or
license to use any patent, trademark, copyright, mask work, trade
dress, trade secret or similar proprietary rights and intellectual
property rights in any manner or for any purpose not expressly permitted
by such manufacturer or licensor. AES makes no representation or warranty
with respect thereto and shall have no liability in connection there.
Moreover, AES disclaims any warranty against infringement with respect
to the products sold and the packaging relating to the products.
EXPORT CONTROL/USE OF PRODUCT:
Certain products sold by
AES and other related technology and documentation are subject to
export control laws, regulations and orders of the United States,
specifically the U.S. Export Administration which may be amended from
time to time. Customer shall not directly or indirectly export or
divert any product and other related technology
and documentation to any third party, person or country where such
export or transmission is restricted or prohibited. Customer agrees
it is responsible to obtain any license to export, re-export, or import
as may be required.
If the Customer or its subsidiaries, affiliates or related companies
is based in Hong Kong, the Customer acknowledges and agrees not to
ship, transfer, export, re-export, resell or otherwise dispose or
release the product into Mainland China or any other prohibited country
for which the end-user or end-use is prohibited by the United States,
unless the Customer has obtained prior written authorization by the
authorized agency with export authority for the United States.
The Customer further acknowledges the end-use of the product is
for commercial purpose only and the Customer expressly states and
confirms the product shall not be used in any military application
or any end-use prohibited by the laws of the United States or any
other law where such law does not conflict with the laws of the United
States.
Certain products sold by AES and other related technology and documentation
are subject to export control laws, regulations and orders of Canada.
Customer shall not directly or indirectly export or divert any product
and other related technology and documentation to any third party,
person or country where such export or transmission is restricted
or prohibited. Customer agrees it is responsible to obtain any license
to export, re-export, or import as may be required.
Customer acknowledges and agrees this is a strict requirement and
assumes sole responsibility for obtaining licenses to ship, transfer,
export, re-export, resell or otherwise dispose or release the product
as may be required.
PRODUCT
INFORMATION:
Product information, including information related to a product's
specifications is obtained by AES from its suppliers or other sources.
Such information is provided by AES on an "AS IS" basis. AES makes
no representation as to the accuracy or completeness of the product
information, and disclaims all representations, warranties and liabilities
under any theory with respect to the product information, including
any implied warranties of merchantability, fitness for a particular
purpose, title and non-infringement. AES recommends Customer validates
any product information before using or acting on such information.
HEADINGS:
The headings in the terms and conditions on the reverse side of the
Invoice have been inserted solely for ease of reference and shall
not modify, in any manner whatsoever, the meaning or scope of the
provisions hereof.
NO
WAIVER:
Under no circumstances shall the failure, negligence or tardiness
of a party as regards the exercise of a right or a recourse provided
for in this Invoice be considered to be a waiver of such right or
recourse. No provision of this Invoice will be deemed waived and no
breach or default excused unless the waiver or excuse is in writing
and signed by the party issuing it. A waiver of any provision or breach
shall not constitute a waiver of any other provision or subsequent
breach.
SEVERABILITY:
If any provision contained in this Invoice is, for any reason, held
to be invalid or unenforceable in any respect under the laws of the
competent jurisdiction elected herein, such invalidity or unenforceability
will not affect any other provision of this Invoice and this Invoice
will be construed as if such invalid or unenforceable provision were
not present.
COMPLETE
AGREEMENT:
This order and Invoice constitutes the entire understanding between
the parties. Declarations, representations, promises or conditions
other than those set forth in this Invoice shall not be construed
in any way so as to contradict, modify or affect the provisions of
this order and Invoice.
This Invoice shall not be amended or modified except by another written
document duly signed by the parties.
GOVERNING
LAW:
This order and Invoice shall be interpreted, construed and enforced
in accordance with the laws of the Province of Quebec. The courts
of the Province of Quebec shall have exclusive jurisdiction in respect
of any question, disagreement, dispute, action, cause of action or
otherwise that may arise from this order and Invoice.
The parties agree to elect domicile in the judicial district of the
city of Montreal, Province of Quebec, Canada, for the hearing of any
question, disagreement, dispute, action, cause of action or otherwise
that may arise from this order and Invoice.
LANGUAGE:
The parties hereto have expressly agreed that this Invoice as well
as all other documents relating thereto be drawn up only in English.
Les parties ont expressément convenu que ce contrat de même que tous
les documents s'y rattachant soient rédigés en anglais seulement
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