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Quick Access: Warranty Statement | Purchase Agreement
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Website Terms and Conditions
The following terms and conditions apply to the content and use of the Benchmark Technology Group (“BENCHMARK”) website (www.benchmarktechnologygroup.com). Using this site indicates that you have read and accepted these terms and conditions. This website is owned by Benchmark Technology Group. Access to and use of the BENCHMARK website is provided to you subject to the following terms and conditions (“Terms”).
Changes in terms
BENCHMARK reserves the right to change the Terms at any time without notifying you, so be sure to review the Terms often. Your course of dealings with BENCHMARK will not change or modify the Terms; the Terms can only be changed by a written agreement that BENCHMARK has signed.
Use of sites
The site has been created for your information and education and for communication. You may not copy, reproduce, or modify the content of any of the BENCHMARK Web Sites for any other purpose, unless it is related to conducting the business of BENCHMARK and written authorization has been given. You may download and print materials from a BENCHMARK Website for your own use, such as to purchase products from BENCHMARK. You may not distribute, display or transmit the content of any of the BENCHMARK Web Sites for your own financial benefit.
You may not use a false e-mail address or impersonate someone else when using a BENCHMARK Website and you may not upload or publish any content that would libel, harass, threaten or invade the privacy or publicity rights of another person, or that is obscene, abusive, illegal or objectionable in some other way.
You agree to comply with all applicable laws when using this site. Some software from this site may be subject to export controls imposed by the United States (“U.S.”) government or foreign agencies. None of the software or underlying technology on this site may be used, downloaded, exported, or re-exported in violation of these laws and may not be used by a citizen or resident of any country on which the U.S. has placed an embargo or by any disqualified party named on a list maintained by the U.S. Treasury, State or Commerce Department. If you download or use the software, you represent and warrant that you are not a citizen of, present or living in, or under the control of, any such country or named on any such list.
Benchmark makes no warrants regarding the accuracy of the information provided on the website. Manufacturers and Benchmark may change information without notice or typographical errors may be present. While the information published is expected to be correct, if important, you should always verify information prior to making any decisions.
You may not use a false e-mail address or impersonate someone else when using a BENCHMARK Website and you may not upload or publish any content that would libel, harass, threaten or invade the privacy or publicity rights of another person, or that is obscene, abusive, illegal or objectionable in some other way.
You agree to comply with all applicable laws when using this site. Some software from this site may be subject to export controls imposed by the United States (“U.S.”) government or foreign agencies. None of the software or underlying technology on this site may be used, downloaded, exported, or re-exported in violation of these laws and may not be used by a citizen or resident of any country on which the U.S. has placed an embargo or by any disqualified party named on a list maintained by the U.S. Treasury, State or Commerce Department. If you download or use the software, you represent and warrant that you are not a citizen of, present or living in, or under the control of, any such country or named on any such list.
Benchmark makes no warrants regarding the accuracy of the information provided on the website. Manufacturers and Benchmark may change information without notice or typographical errors may be present. While the information published is expected to be correct, if important, you should always verify information prior to making any decisions.
privacy policy
This website is owned and operated by BENCHMARK. BENCHMARK recognizes that many visitors to our site are concerned about the information they provide and how we treat that information. Our Privacy Policy addresses those concerns. We may update the Policy from time to time, so please check back occasionally. As a policy, our site does not collect personally identifiable information from you unless you provide it to us voluntarily and knowingly. You can visit our sites without telling us who you are or revealing information about yourself. However, if you specifically agree to provide us with identifiable information, such as by asking to be put on our mailing list, we may contact you from time to time. You will never be asked to provide us with your social security number, driver’s license number, home address or any personal banking information; please do not provide it at any time.
There may be some features of our site that may require you to register. If you choose to register, use user names and passwords to your discretion. While the information will be encrypted on our site, it is a good practice to be discrete. BENCHMARK will only use the information you provide internally for the purpose of providing the products, product information or services that you may request.
There may be some features of our site that may require you to register. If you choose to register, use user names and passwords to your discretion. While the information will be encrypted on our site, it is a good practice to be discrete. BENCHMARK will only use the information you provide internally for the purpose of providing the products, product information or services that you may request.
cookies
Like many companies, we may use "cookie" technology on our web site. These cookies are stored on your computer by your browser. When you log in, this type of cookie may tell us whether you've visited us before or are a new visitor. The cookie doesn't obtain any personal information about you or provide us with any way to contact you, and the cookie doesn't extract any information from your computer. We do use the cookie to help us identify site pages in which you have the greatest interest, so that we can better target your needs.
We also may allow, from time to time, third-party companies to collect certain anonymous information for marketing purposes when you visit our web site. This information, often referred to as web analytics, is collected for Benchmark internal use only to help us market our products and services and to improve the customer web experience.
We also may allow, from time to time, third-party companies to collect certain anonymous information for marketing purposes when you visit our web site. This information, often referred to as web analytics, is collected for Benchmark internal use only to help us market our products and services and to improve the customer web experience.
If you have any questions about our site or this notice, please feel free to contact us at 470.865.6000.
Last Revised: June 2015
Last Revised: June 2015
Warranty Statement
Service program descriptions
Benchmark Technology Group provides warranty and post warranty repair services. Simply keeping your equipment clean and following manufacturer recommended maintenance guidelines, you can expect to obtain years of reliable performance. In the event you experience problems with your equipment, you should follow your institution’s problem reporting guidelines for assistance; usually this is a Help Desk. The Help Desk, or other support group in your organization, will advise you how to obtain service if needed. In contacting Benchmark Technology Group, (“Benchmark”) you are requesting service for your equipment. If the equipment is under warranty or a Benchmark Service Program, the equipment will be repaired under the terms and conditions of that agreement. The equipment model and serial number is required to verify the equipment is eligible for a warranty repair. If the equipment is not covered under warranty or a Benchmark Service Program, you are requesting a “post warranty” repair which is billable based on the Standard Repair Rate unit charge. By sending your equipment to the Benchmark Service Center, you agree to the terms and conditions of this agreement and accept financial responsibility for the service to be provided. This document outlines the scope of coverage available through the warranty and post warranty repair programs.
Standard Manufacturer and Extended Warranty Repairs
The Standard Warranty is a limited manufacturer warranty and is effective for the term defined by the manufacturer and purchased by your institution. An Extended Warranty Program extends the manufacturer standard warranty, with the same scope of coverage, for an extended period of time. An extended warranty must be purchased at the time the equipment is originally purchased or prior to the delivery of the equipment to the customer site; this policy varies by manufacturer and service provider. The manufacturer warrants that the product and its branded accessories designed for use with the specified product will be free from defects in workmanship and materials for the defined warranty period. The product is assumed to be unmodified and used under normal conditions and maintained as recommended by the manufacturer. The warranty period begins on the delivery date of the product from the manufacturer or Benchmark to the customer site. The warranty parameters are defined by the manufacturer and observed by Benchmark, an Authorized Service Provider (ASP). During the warranty period, the manufacturer and/or Benchmark have the right to repair or replace any defective part or the entire unit, for any reason, with new or rebuilt components with equal or better performance. Please note that per manufacturers and insurance providers, for safety and health reasons, any equipment that has been exposed to flood waters or extreme weather is ineligible for repair and redeployment.
Advanced Exchange Program
An Advanced Exchange Program (AEP) is one in which a replacement unit is shipped for overnight delivery and the defective unit is returned for warranty service. The same repair terms apply as in a warranty repair; however the Advanced Exchange option is a program upgrade that provides expedited order processing, overnight delivery and includes return ground shipping of the defective unit. In an Advanced Exchange program, the original unit is not returned to the customer and the remainder of the warranty is transferred to the replacement unit. In some cases, Benchmark may accommodate a customer and develop an Advanced Exchange program in which the customer’s inventory is used to provide the spare equipment shipped overnight. In that program, the returned equipment is repaired under warranty terms and placed back into customer owned inventory. Benchmark also offers Advanced Exchange for ground delivery depending on customer location.
Note: In the AEP, Benchmark highly recommends the customer to qualify the problem with a Benchmark technician prior to requesting the exchange. By qualifying the problem, a customer may avoid charges in the event there is no trouble found with the returned unit after completion of diagnostic testing.
Annual Service Agreement
An Annual Service Agreement (ASA) is a one-year service program in which units are enrolled by model and serial number for unlimited repair incidents during the term of the agreement. This program carries the same terms and conditions of a warranty program regarding inclusions and exclusions, but is designed to assume coverage for equipment after the term of a warranty or extended warranty expires. The customer obtains a Repair Order number, ships the unit to Benchmark and the repair includes parts, labor and return ground shipping. The return shipping method may be upgraded at the request of the customer.
Standard Rate Repair (Post Warranty Repairs)
Post Warranty repairs include any repairs not covered by a warranty, extended warranty or annual service agreement. Customers electing not to enroll units for service plans with a term commitment may elect to utilize the Standard Rate Repair option. These repairs are requested and processed per incident and are billed at the fixed Standard Rate Repair. In this program, the flat rate is inclusive of parts, labor and return shipping via ground. In some limited models, certain components may be excluded from the repair; these may include a main circuit board or print head; the Customer will be notified if those exceptions are found. There is a $48 minimum diagnostic fee which can be applied toward the repair or a replacement unit if the repair is not performed for any reason whatsoever.
Benchmark reserves the right to refuse equipment for repair for any reason whatsoever. In the event Benchmark determines it is not economically feasible to pursue a repair following completion of diagnostics, the Customer will be notified. Any equipment repaired by Benchmark has a 90-day guarantee against defects in parts or workmanship in the repair performed.
Express Exchange Program
The Express Exchange Program (EEP) is a per incident program that does not require enrollment or a term commitment. The EEP is upgrades the Standard Repair Rate Program by providing expedited turnaround to repairs. Rather than waiting for a customer unit to be repaired and then returned, in the Express Exchange Program, a refurbished unit is shipped via ground the same day to replace the unit received. Ground shipping is included with the flat rate exchange fee. The defective unit received at Benchmark is not returned and the replacement unit has a 90-day warranty.
Standard Manufacturer and Extended Warranty Repairs
The Standard Warranty is a limited manufacturer warranty and is effective for the term defined by the manufacturer and purchased by your institution. An Extended Warranty Program extends the manufacturer standard warranty, with the same scope of coverage, for an extended period of time. An extended warranty must be purchased at the time the equipment is originally purchased or prior to the delivery of the equipment to the customer site; this policy varies by manufacturer and service provider. The manufacturer warrants that the product and its branded accessories designed for use with the specified product will be free from defects in workmanship and materials for the defined warranty period. The product is assumed to be unmodified and used under normal conditions and maintained as recommended by the manufacturer. The warranty period begins on the delivery date of the product from the manufacturer or Benchmark to the customer site. The warranty parameters are defined by the manufacturer and observed by Benchmark, an Authorized Service Provider (ASP). During the warranty period, the manufacturer and/or Benchmark have the right to repair or replace any defective part or the entire unit, for any reason, with new or rebuilt components with equal or better performance. Please note that per manufacturers and insurance providers, for safety and health reasons, any equipment that has been exposed to flood waters or extreme weather is ineligible for repair and redeployment.
Advanced Exchange Program
An Advanced Exchange Program (AEP) is one in which a replacement unit is shipped for overnight delivery and the defective unit is returned for warranty service. The same repair terms apply as in a warranty repair; however the Advanced Exchange option is a program upgrade that provides expedited order processing, overnight delivery and includes return ground shipping of the defective unit. In an Advanced Exchange program, the original unit is not returned to the customer and the remainder of the warranty is transferred to the replacement unit. In some cases, Benchmark may accommodate a customer and develop an Advanced Exchange program in which the customer’s inventory is used to provide the spare equipment shipped overnight. In that program, the returned equipment is repaired under warranty terms and placed back into customer owned inventory. Benchmark also offers Advanced Exchange for ground delivery depending on customer location.
Note: In the AEP, Benchmark highly recommends the customer to qualify the problem with a Benchmark technician prior to requesting the exchange. By qualifying the problem, a customer may avoid charges in the event there is no trouble found with the returned unit after completion of diagnostic testing.
Annual Service Agreement
An Annual Service Agreement (ASA) is a one-year service program in which units are enrolled by model and serial number for unlimited repair incidents during the term of the agreement. This program carries the same terms and conditions of a warranty program regarding inclusions and exclusions, but is designed to assume coverage for equipment after the term of a warranty or extended warranty expires. The customer obtains a Repair Order number, ships the unit to Benchmark and the repair includes parts, labor and return ground shipping. The return shipping method may be upgraded at the request of the customer.
Standard Rate Repair (Post Warranty Repairs)
Post Warranty repairs include any repairs not covered by a warranty, extended warranty or annual service agreement. Customers electing not to enroll units for service plans with a term commitment may elect to utilize the Standard Rate Repair option. These repairs are requested and processed per incident and are billed at the fixed Standard Rate Repair. In this program, the flat rate is inclusive of parts, labor and return shipping via ground. In some limited models, certain components may be excluded from the repair; these may include a main circuit board or print head; the Customer will be notified if those exceptions are found. There is a $48 minimum diagnostic fee which can be applied toward the repair or a replacement unit if the repair is not performed for any reason whatsoever.
Benchmark reserves the right to refuse equipment for repair for any reason whatsoever. In the event Benchmark determines it is not economically feasible to pursue a repair following completion of diagnostics, the Customer will be notified. Any equipment repaired by Benchmark has a 90-day guarantee against defects in parts or workmanship in the repair performed.
Express Exchange Program
The Express Exchange Program (EEP) is a per incident program that does not require enrollment or a term commitment. The EEP is upgrades the Standard Repair Rate Program by providing expedited turnaround to repairs. Rather than waiting for a customer unit to be repaired and then returned, in the Express Exchange Program, a refurbished unit is shipped via ground the same day to replace the unit received. Ground shipping is included with the flat rate exchange fee. The defective unit received at Benchmark is not returned and the replacement unit has a 90-day warranty.
Warranty program repair terms
No Charge. There is no charge for parts or labor for an eligible product that is returned for repair during the warranty period and under normal use, a manufacturer defect is identified and repaired. The manufacturer warranty stipulates repairs that are included or excluded by the warranty. If the product is replaced, the remaining warranty is transferred to the replacement product. The same terms apply to any equipment covered under a Benchmark Annual Service Agreement or Warranty Extension Program. All units are cleaned, calibrated and tested as part of the repair service and boxed for safe return shipping.
Shipping Charges. The customer is responsible for shipping charges to the Benchmark Service Center. Unless otherwise agreed upon, all products will be returned to the requested Customer site using ground transportation. There is no charge for return shipping via ground transportation on a warranty repair. Benchmark systems provide tracking information for all shipments. Upgraded shipping options are available for an additional fee.
Minimum Charge. In the event an exception that is excluded by the manufacturer warranty is found, a repair fee may be applicable. There is a $48 minimum charge for any units submitted for repair in which the following exceptions may be present:
In the event an out-of-warranty repair condition is identified, the customer will be notified to determine whether or not to proceed with the repair given the estimate provided by Benchmark. If the customer elects not to proceed with the out-of- warranty repair, the minimum diagnostic fee of $48 is applicable along with shipping and/or disposal fees. If the unit returned was a result of an Advanced Exchange, the overnight shipping fee is also eligible for recovery. The labor rate for out-of-warranty repairs is $84 per hour.
The following conditions void a warranty:
Shipping Charges. The customer is responsible for shipping charges to the Benchmark Service Center. Unless otherwise agreed upon, all products will be returned to the requested Customer site using ground transportation. There is no charge for return shipping via ground transportation on a warranty repair. Benchmark systems provide tracking information for all shipments. Upgraded shipping options are available for an additional fee.
Minimum Charge. In the event an exception that is excluded by the manufacturer warranty is found, a repair fee may be applicable. There is a $48 minimum charge for any units submitted for repair in which the following exceptions may be present:
- the product must be cleaned of excessive ink residue as a result of 1) failing to remove an ink cartridge, ribbon or toner cartridge from the unit or 2) use of non-approved consumable supplies;
- there is No Trouble Found (NTF) with the product and it completes all standard self-test and manufacturer approved program diagnostics; in this case, the unit has been cleaned to ensure sensors are not obstructed, foreign objects and paper are removed from all feed, transport and exit paths and the unit is thoroughly and repeatedly tested in an attempt to identify a possible intermittent problem;
- the equipment does not operate properly because the operator failed to perform routine cleaning and maintenance procedures, such as replacing consumable parts, as required for normal operation or proper removal of paper or foreign objects that may obstruct a paper path;
- the equipment may have been subject to improper environmental or operating conditions resulting is damage attributed to improper voltage, fluids, excessive humidity, extreme temperatures or airborne contaminants;
- the equipment is damaged as a result of improper packing or handling upon arrival to the Service Center.
In the event an out-of-warranty repair condition is identified, the customer will be notified to determine whether or not to proceed with the repair given the estimate provided by Benchmark. If the customer elects not to proceed with the out-of- warranty repair, the minimum diagnostic fee of $48 is applicable along with shipping and/or disposal fees. If the unit returned was a result of an Advanced Exchange, the overnight shipping fee is also eligible for recovery. The labor rate for out-of-warranty repairs is $84 per hour.
The following conditions void a warranty:
- the equipment was changed or altered from original equipment manufacturer specifications;
- a failure was caused by interconnected devices or supplies other than those approved by the manufacturer;
- a failure or damage resulted from catastrophe, acts of God or natural disaster including but not limited to lightning, flooding, fire, earthquake, exposure to weather elements or improper or harsh environment;
- any system or operation failures attributable to Customer software configuration or Customer Software operation;
- the presence of jammed staples, damage resulting from user negligence, debris on camera lens surfaces, excessive accumulation of paper or dust, improper cleaning or operating the unit outside the normal rated duty cycle;
- electrical, accident, neglect, riot, misuse, failure of electrical power of air conditioning, or any causes other than ordinary use and defects in materials or workmanship.
Important shipping instructions
Due to the high volume of repairs received at the Service Center, a unit cannot be processed for repair without a Benchmark provided Repair Order (RO) number and may be refused on delivery if the shipment cannot be accurately identified. Benchmark is not responsible for equipment shipped without a Repair Order number or not properly packaged for shipping. An RO number can be obtained from our website application or by contacting Customer Service or your sales representative. For more information about Benchmark’s Service Programs or to verify your equipment warranty status, please call or email our Customer Service Department at 800-554-4582, 470-865-6000 or email [email protected].
In order to receive the quickest turnaround for your product repair, be sure to follow the Return Instructions itemized below. For your tracking purposes, save your Repair Order confirmation email and you may also want to record your shipping tracking number.
Ink Cartridge. If present, remove the ink cartridge from the scanner or printer. Failure to remove the ink cartridge may result in ink dispersion which is not covered under warranty and will result in an additional cleaning charge. You may save the cartridge for re-use in an air-tight container or plastic bag. Do NOT ship the ink cartridge, it is not required for repair eligibility.
Cables. Unless otherwise specified, do NOT include any interface cables, power cords or power supplies. These are not required for repair unless requested by a technician if power is a suspected problem.
Packaging. If possible, the units should be shipped in their original box to prevent any damage. If the original shipping box is not available, the product should be appropriately packaged to protect it from mishandling. The unit must be completely assembled to be accepted for warranty repair. Incomplete units or those damaged in shipping may void eligibility for a warranty repair and may be subject to additional parts charges.
Documentation. Any documentation that can be provided by the customer to explain the problem may be helpful, especially if the problem is intermittent in nature. All documentation should have any confidential information redacted.
Shipping Label. Be sure to send the product to the Service Center provided by the Customer Service Representative or email confirmation. A Repair Order (RO) number must be clearly stated on the address line of the boxed equipment for the unit to be accepted for repair.
Please ship to:
Benchmark Technology Group
1665 Bluegrass Lakes Parkway, Suite 100
Alpharetta, GA 30004
Phone: 470.865.6000
Repair Order #: _____________
In order to receive the quickest turnaround for your product repair, be sure to follow the Return Instructions itemized below. For your tracking purposes, save your Repair Order confirmation email and you may also want to record your shipping tracking number.
Ink Cartridge. If present, remove the ink cartridge from the scanner or printer. Failure to remove the ink cartridge may result in ink dispersion which is not covered under warranty and will result in an additional cleaning charge. You may save the cartridge for re-use in an air-tight container or plastic bag. Do NOT ship the ink cartridge, it is not required for repair eligibility.
Cables. Unless otherwise specified, do NOT include any interface cables, power cords or power supplies. These are not required for repair unless requested by a technician if power is a suspected problem.
Packaging. If possible, the units should be shipped in their original box to prevent any damage. If the original shipping box is not available, the product should be appropriately packaged to protect it from mishandling. The unit must be completely assembled to be accepted for warranty repair. Incomplete units or those damaged in shipping may void eligibility for a warranty repair and may be subject to additional parts charges.
Documentation. Any documentation that can be provided by the customer to explain the problem may be helpful, especially if the problem is intermittent in nature. All documentation should have any confidential information redacted.
Shipping Label. Be sure to send the product to the Service Center provided by the Customer Service Representative or email confirmation. A Repair Order (RO) number must be clearly stated on the address line of the boxed equipment for the unit to be accepted for repair.
Please ship to:
Benchmark Technology Group
1665 Bluegrass Lakes Parkway, Suite 100
Alpharetta, GA 30004
Phone: 470.865.6000
Repair Order #: _____________
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Last Revised: September 2017
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Purchase Agreement
The following terms and conditions shall apply to the sale of goods or products (“goods” or “products”) associated with your invoice:
terms and conditions
The obligations and rights of the party identified by the “sold to” on the Invoice hereof (“Buyer”) and Benchmark Technology Group (“Seller”) shall be governed solely by these terms and conditions. The provisions of any purchase order or other writing, or course of dealing, usage of trade or other conduct, inconsistent herewith shall not constitute a part of this contract of sale. If any of the terms and conditions hereof is not acceptable to Buyer, Buyer shall notify Seller in writing within five (5) business days of Buyer’s receipt of this contract of sale. This is intended by the parties to be a final expression of their agreement and is a complete and exclusive statement of the terms and conditions of such agreement and supersedes all prior and contemporaneous promises, covenants, agreements, understandings, negotiations and discussions between the parties, whether oral or written.
Prices
The prices and terms of sale stated herein are FOB Seller’s Facility for sales requiring shipment of goods to a location in the U.S.A., or FCA Seller’s Facility (per Incoterms 2010) for sales requiring shipment of goods to a location outside of the U.S.A., and are based on the quantities specified for delivery in a single lot unless otherwise indicated on Seller’s Order Acknowledgment and/or invoice. Unless otherwise specified by Seller, prices for goods sold are for the quantity specified and do not include charges for transportation, insurance, special packaging, marking, applicable sales or use taxes, value added taxes, export or import licenses, fees, taxes, duties and the like. The customer entity designated on the face hereof (“Buyer”) shall bear the cost of such charges in addition to the prices quoted or invoiced. Such prices are subject to increase by Seller (i) for any order change made by Buyer and approved by Seller, and (ii) with respect to multiple orders pursuant to a single purchase order, for any order confirmed after a general price increase made by Seller. Prices are in U.S. dollars.
payment and payment terms
Checks/Credit Cards/ACH are accepted subject to collection, and the collection date shall be deemed the payment date. Seller may apply any check received from Buyer against any of Buyer’s obligation(s) to Seller, under this or any other agreement, regardless of any statement appearing on or referring to such check, without discharging Buyer’s liability with respect to any additional amounts owed by Buyer to Seller, and Seller’s acceptance of such check shall not constitute a waiver of Seller’s right to pursue the collection of any remaining balance. Buyer shall pay the entire net amount of each invoice rendered by Seller pursuant to the terms of each such invoice without offset or deduction. Payment shall be made in U.S. dollars. Unless otherwise specified, payment terms are net 30 calendar days from invoice date, subject to Seller’s approval of amount and terms of credit. Seller reserves the right to require payment in advance or C.O.D. or to modify credit terms either before or after shipment of goods. Invoices not paid by due date will have a 1.5% per month late payment charge (or the maximum rate allowable by law, if lower) assessed against any unpaid balance from the invoice due date until the payment date, together with Seller’s cost of collection (including reasonable attorney’s fees).
shipment, Ship date & variation in quantity
Goods shall be shipped to Buyer ExWorks (Incoterms 2010) Seller’s manufacturing facility. Without Buyer’s written instructions, Seller shall select the common carrier but shall not assume liability in connection with the shipment, nor shall the common carrier be construed to be Seller’s agent. Transportation charges will be collected on delivery or will be invoiced to Buyer. Goods will be shipped in packaging Seller deems appropriate. If Buyer requests special packaging, Buyer shall pay for and accept responsibility and risk for such packaging. Notwithstanding anything in Buyer’s purchase order or in the Incoterms to the contrary, except as provided in Section 10, title of goods shall pass from Seller to Buyer when Seller makes goods available at Seller’s facility to the common carrier or to Buyer. Except as provided in Section 10, risk of loss of or damage to goods shall pass from Seller to Buyer when Seller makes goods available at Seller’s facility to the common carrier or to Buyer. Seller shall attempt to ship goods within 30 calendar days of the Ship Date; provided, however, that Seller shall not be charged with any liability for any delays or failure to perform due to causes or events covered under Section 8. Shipments may be in installments. Seller’s default or delay in shipping the whole or any part or installment of goods shall not affect any other portion thereof.
cancellation, modification, suspension & rescheduling
Cancellation, modification, suspension, or delay in shipment of Buyer’s order shall not be accepted on terms which will not fully indemnify and reimburse Seller against losses, costs and expenses arising therefrom; such indemnity to include, without limitation, recovery of all direct costs incurred and a normal profit as well as a standard restocking charge.
credit approval
Shipments, deliveries and performances of work shall at all times be subject to the approval of Seller’s credit department. Seller may at any time decline to make any shipment or delivery or perform any work except upon receipt of payment in advance or upon such other payment terms as are acceptable to Seller’s credit department.
seller's limited warranty
- Warranty. Except as otherwise provided herein, Seller warrants that goods sold will be free from defects in material and workmanship for 90 days from the date Seller ships such goods to Buyer (the “Warranty Period”), provided such first date of item being put into service is within two hundred seventy (270) consecutive days from the date of shipment by Seller. This warranty covers defects arising under normal use and does not include malfunctions, failures or defects resulting from misuse, abuse, mishandling, accident, neglect, improper or inadequate maintenance, alteration, modification, improper installation or repairs by any party other than Seller. Notwithstanding anything else to the contrary, Seller gives no warranty whatsoever for components or goods, including without limitation memory semiconductors, consigned or sold to Seller by Buyer. The warranty provided is limited to Buyer and may not be assigned. EXCEPT AS SET FORTH HEREIN, SELLER PROVIDES GOODS WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE AND EXPRESSLY EXCLUDES ANY SUCH WARRANTIES INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, TRADE USAGE OR TRADE PRACTICE OR ANY WARRANTIES AGAINST ANY INFRINGMENT OR MISSAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION STATEMENTS REGARDING CAPACITY, AVAILABILITY, SUITABILITY FOR USE OR PERFORMANCE OF GOODS, WHETHER MADE BY SELLER’S EMPLOYEES OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY SELLER FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF SELLER. BUYER’S REMEDIES SHALL BE LIMITED TO THOSE PROVIDED HEREIN TO THE EXCLUSION OF ALL OTHER REMEDIES INCLUDING WITHOUT LIMITATION INCIDENTAL, SPECIAL, INDIRECT, ON SEQUENTIAL, EXEMPLARY OR RELIANCE DAMAGES.
- Warranty Returns. During the Warranty Period, Seller will, at its option and as Buyer’s sole and exclusive remedy for any defect or breach of warranty, either credit Buyer for or repair or replace defective goods but only if they are returned to Seller as follows: (1) Before shipping defective goods back to Seller, Buyer shall ensure that said goods are defective and shall obtain a Return Material Authorization (“RMA”) number from Seller; (2) Buyer shall include a written explanation for goods return and the appropriate RMA number. (3) Buyer shall pay shipping costs for said goods returned and assume risk of loss of or damage to such goods during shipping. Seller shall pay shipping costs to return repaired or replaced goods to the location from where Buyer shipped defective goods to Seller, and Buyer shall assume risk of loss of or damage to goods once Seller delivers such goods to the common carrier. Goods that are not defective shall be returned to Buyer, and Buyer shall pay for shipping costs and assume risk of loss of or damage to such goods during shipping or otherwise. Title to goods returned pursuant to this Section 5 shall remain with Buyer; provided, however, that the title to the defective goods not returned to Buyer shall pass from Buyer to Seller as of the date Seller ships replacement goods to Buyer or Seller credits Buyer for defective goods. Repair or replacement shall not extend the Warranty Period for said goods.
indemnity against infringement
- Seller’s Indemnity Obligation. Except as otherwise provided herein, and subject to the limitation of liability set forth below, Seller shall indemnify, defend and hold harmless Buyer and its subsidiaries from and against (i) actions and litigation alleging that the use or sale of goods infringes upon or misappropriates any 3rd party’s US patent (“IP Claims”); provided, however, that the foregoing indemnity and defense obligation is conditioned on the following: (i) Buyer’s prompt written notice to Seller of any IP Claim for which indemnity is claimed, (ii) Seller’s complete control of the defense and settlement, and (iii) Buyer’s complete cooperation in such defense. Notwithstanding the foregoing, Seller shall have no defense or indemnity obligation for or with respect to IP Claims arising out of or in any way related to (i) designs, instructions, specifications or intellectual property not developed by Seller or not furnished by Seller, (ii) components of goods, consigned or sold to Seller by Buyer or specified by Buyer, (iii) the combination of goods with any hardware, products, equipment, materials, text, graphics, software or the like supplied by a party other than Seller, (iv) modification of goods by a party other than Seller, (v) use of goods in a way not specified in writing by Seller, or (vi) components made by someone other than Seller. Seller shall have no obligation for any settlement entered into without Seller’s prior written consent.
- Buyer’s Indemnity Obligation. Except as otherwise provided herein, Buyer shall indemnify, defend and hold harmless Seller and its subsidiaries from and against (i) any form of intellectual property claim arising out of or related to (1) designs, instructions, specifications or intellectual property developed by Buyer or furnished by Buyer, (2) components of goods, consigned or sold to Seller by Buyer or specified by Buyer, (3) combination of goods with any hardware, text, graphics, software or other device supplied by a party other than Seller, (4) the modification of goods by a party other than Seller, and (ii) liens, liabilities, damages, costs, expenses (including reasonable attorney’s fees) and the like arising out of or related to any form of intellectual property claim covered under this Section 6(b); provided, however, that the foregoing indemnity and defense obligation is conditioned on the following: (1) Seller’s prompt written notice to Buyer of any such claim for which indemnity is claimed, (2) Buyer’s complete control of the defense and settlement, and (3) Seller’s complete cooperation in such defense. Buyer shall have no obligation for any settlement entered into without Buyer’s prior written consent.
- Injunctive Actions. If during the course of any IP Claim covered under Section 8(a) the use or sale of the allegedly infringing goods is finally enjoined, Seller shall, at its option and expense, use commercially reasonable efforts to do one of the following (in addition to its obligations under Section 8(a): (i) procure for Buyer the right to use or sell, as applicable, the allegedly infringing goods, (ii) replace or modify the allegedly infringing goods or the affected part thereof with equivalent non-infringing technology, or (iii) within 30 calendar days of Seller’s receipt of said allegedly infringing goods, refund to Buyer an amount equal to the net price paid by Buyer for said allegedly infringing goods.
- Limitation of Indemnity. THE INDEMNITY CONTAINED IN THIS SECTION 8 STATES THE ENTIRE LIABILITY OF EACH PARTY TO THE OTHER WITH RESPECT TO THE MISAPPROPRIATION OR INFRINGEMENT OF ANY GOODS, OR ANY PARTS THEREOF, OF ANY PATENTS, TRADEMARKS, TRADE SECRETS, COPYRIGHTS, MASK WORKS OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON AND IS IN LIEU OF WARRANTIES OR REPRESENTATIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, IN REGARD THERETO. EACH PARTY’S REMEDIES SHALL BE LIMITED TO THOSE PROVIDED HEREIN TO THE EXCLUSION OF OTHER REMEDIES INCLUDING WITHOUT LIMITATION INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR RELIANCE DAMAGES. IN NO EVENT SHALL SELLER’S TOTAL LIABILITY TO BUYER EXCEED THE PURCHASE PRICE OF THE ALLEGEDLY INFRINGING GOODS.
property and ownership rights
Seller’s design, development or manufacture of a good for Buyer shall not be deemed to produce a work made for hire and shall not give to Buyer any patent, copyright or any other intellectual property right interest in the good or any portion thereof. Such rights shall remain Seller’s property. Tooling, fixtures, test equipment, models, patterns, molds, processing, software and technology and other proprietary information of Seller whether or not made for, obtained or developed by Seller for the performance of this agreement, shall remain Seller’s sole property. Buyer’s payment of any costs or expenses relating to any of the foregoing (including without limitation non-recurring expenses) shall not be deemed to grant Buyer any ownership interest therein. Seller offers goods for sale and sells goods subject in every case to the condition that such sale does not convey any license, expressly or by implication, estoppel or otherwise, under any patent, copyright, mask work or the like with respect to which Seller can grant licenses covering complete equipment, or any compilation, assembly, combination, method or process in which any such goods are used as components. Seller reserves its rights under such patents, copyrights, mask works or the like.
assignment and binding effect
Buyer shall not assign its rights or obligations under this Agreement or any interest therein without Seller’s prior written consent. Any assignment without such consent shall be void and have no force and effect. This Agreement shall be binding and inure to the benefit of the parties hereto, their successors and permitted assigns, and their legal representatives.
force majeure
Seller shall not be liable for delay or failure to perform if such delay or failure is due to causes or events beyond Seller’s control, even if foreseeable by either party, including without limitation suppliers’ delay, act of God, labor disturbance or strike, war, fire, explosion, earthquake, accident, adverse weather, inability to secure transportation, governmental act or regulation, Seller’s inability to obtain materials, shortage of materials or any other causes or events beyond Seller’s control. Consequently, the Ship Date shall be extended for a period equal to the delay. Without liability to Buyer, Seller reserves the right to (i) allocate among customers or potential customers, or (ii) defer or delay the shipment of, goods that are in short supply.
consigned material
- Consigned Components. In consideration of Seller’s agreement to accept Buyer’s consignment of components, if any, for use in the manufacture of goods, Buyer agrees that, notwithstanding anything else contained in this agreement or otherwise, Buyer bears the risk of loss of or damage to consigned components and shall release Seller from liability for loss to consigned components, including without limitation loss resulting from Seller’s negligence or yield loss, and further shall waive rights of subrogation against Seller in the event of such loss. At all times, Buyer shall hold title to consigned components. Buyer shall ship consigned components to Seller DDP (Incoterms 2010) Seller’s manufacturing facility.
- Defective, Faulty or Damaged Consigned Components. Seller shall return consigned components damaged at delivery, damaged through yield loss, defective or faulty, to Buyer ExWorks (Incoterms 2010) Seller’s manufacturing facility. The quantity of goods ordered shall be automatically reduced as necessary due to the return of said consigned components.
buyer's duty to give timely notice of seller's breach
Buyer shall notify Seller in writing within 30 calendar days of Buyer’s discovery of any defective performance, failed performance or other breach of this agreement by Seller. Buyer’s failure to provide such notice to Seller within this specified period constitutes a waiver of the defective or failed performance or other applicable breach by Seller.
SUBSTITUTIONS and modifications
Seller reserves the right to make substitutions and modifications in the specifications of goods sold by it if such substitutions or modifications do not cause a material adverse affect on overall performance.
general provisions
- Integration. This agreement constitutes the entire understanding between Buyer and Seller with respect to the subject matter hereof and supersedes prior agreements, discussions and understandings between Buyer and Seller; however, if there is a pre-existing written contract covering the sale of goods from Seller to Buyer, this order shall be subject to such pre-existing contract and, unless otherwise provided in such pre-existing contract, the terms and conditions of this agreement. If terms and conditions contained in the “Terms and Conditions” section of this agreement conflict with the terms and conditions contained on the face of this agreement, the latter shall apply. This agreement may not be modified, supplemented, qualified or interpreted by any trade usage or prior course of dealing not set forth herein. Buyer acknowledges that it has not entered into this agreement in reliance upon any warranty or representation by any person or entity, except for such warranties or representations set forth herein.
- Choice of Law. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement; rather this agreement shall be construed, enforced and governed in accordance with Georgia state laws without giving effect to choice of law provisions thereof.
- Jurisdiction; Venue. The jurisdiction and venue of any action shall be the Superior Court of Georgia for the County of Forsyth or the U.S. District Court for the Northern District of Georgia, and each party submits itself to the jurisdiction and venue of such courts.
- Severability. If any term or provision of this agreement is held to be illegal, invalid, unenforceable or in conflict with any law of any governmental entity with jurisdiction over this agreement, this agreement shall continue in force without such provision or as changed and interpreted to give best effect to the parties’ intentions.
- Import; Export. Laws, regulations, orders or other restrictions on the export from the U.S.A. of any technology, products incorporating technology or information pertaining thereto that may be imposed by the U.S.A. government or any agency thereof apply. Notwithstanding anything else to the contrary, Buyer shall not export or re-export, directly or indirectly, any technology, products incorporating technology or information pertaining thereto to any country for which the U.S.A. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval. Seller shall provide information under its control for Buyer to obtain any import or export licenses required for Buyer to receive or ship goods sold.
- U.S. Govt. Contract Provisions and Clauses. If goods purchased are sold, or are incorporated into products that are sold, under a U.S. Government contract, Seller rejects provisions or clauses required to be passed on to Seller pursuant to said contract and such provisions or clauses shall not be deemed included or binding on Seller unless accepted in writing by Seller’s authorized representative.
- Waivers; Amendments. This Agreement may be amended, changed, modified, waived or discharged, but only if it is in writing and signed by an authorized representative of the party against whom enforcement is sought.
- Delays; Omissions. No delay or omission to exercise any right, power or remedy accruing to any party upon any breach or default of the other party under this agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach or default. Waiver, permit, consent or approval of any kind or character of any breach or default must be in writing signed by an authorized representative of the party against whom enforcement is sought.
- Mediation. If any dispute arises out of or related to this agreement, the parties shall first to try in good faith to settle the dispute by mediation in the County of Forsyth. Either party may initiate mediation by delivering a written request to the other party. Within 10 calendar days of such request, the parties shall confer to select a mediator. If the parties fail to agree upon a mediator, either party may request that the Judicial Arbitration and Mediation Services (JAMS) appoint a mediator.
- Litigation Expenses. The prevailing party in any action or proceeding to enforce or interpret this agreement shall be entitled to recover its reasonable expenses including without limitation attorney’s fees and fees on any appeal.
- Errors. Stenographic and clerical errors in sales made under this agreement are subject to correction.
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Last Revised: September 2017
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