These
Terms and Conditions of Sale ("Agreement ")
are the only terms and conditions by which USBshop (the
trading name of USBshop LLC)
shall be bound, and they supersede all other
agreements between the parties (including the terms
contained in your Purchase Order(s) if any). Accordingly,
such terms and conditions supersede and neither party
places any reliance upon all and any prior representations
(not limited to but including all descriptive materials,
sales literature, price lists and all other documents
issued by us) and you acknowledge that save as expressly
stated hereunder, you have not been induced to enter
into this Agreement by any representation whether oral
or in writing by us, our employees, servants or agents
and you unconditionally waive your rights to claim damages
against USBshop or seek to rescind this Agreement in
reliance on any statement made that is not set out or
referred to in these Terms and Conditions. This acknowledgement
and waiver shall not apply to fraudulent misrepresentations.
The expression "you" throughout this Agreement
shall mean yourself, if you are an individual purchaser
or the company you are representing, if you are purchasing
the Goods and/or Services on behalf of a company or
other business entity. The warranties included in this
Agreement are exclusive and to the fullest extent permitted
by law, all conditions, warranties or representations
whether express or implied by statute or common law
(including without limitation the implied warranties
or conditions of satisfactory quality and fitness for
purpose) are hereby excluded.
ON-LINE ORDERS - USBshop has the right to cancel on-line orders if the ordered products are discontinued or it is not in stock
QUOTATIONS AND PURCHASE ORDERS - Quotations submitted
by USBshop shall be valid for the period therein stated,
or where no period is stated then for a period of
thirty days from date that such quotation is issued
by USBshop. Each Purchase Order is subject to these
Terms and Conditions of Sale which may not be modified
or varied without our prior written agreement. For
the purpose of this Agreement the terms Goods and
Services shall be defined in the Purchase Order(s).
A Purchase Order is deemed to have been accepted by
us only after a written Order Acknowledgement has
been issued to you. We reserve the right to refuse
to accept any Purchase Order for whatever reason.
If at any time after we receive your Purchase Order
you wish to make any modifications or additions to
it, we shall endeavour to comply with your request,
on the understanding that any resultant variations
such as price or delivery date must be accepted by
us, in writing, in advance of the change being implemented.
PRICES - All prices quoted are exclusive of state taxes, sales
taxes, all other taxes, carriage, insurance, freight
fees, export fees, custom duties, installation and
commissioning and any of these items that are paid
by us at your request shall be invoiced by us and
repaid by you within 30 days of the issue of such
invoice by us. While we will endeavour to maintain
any price quoted, we reserve the right to vary the
price. Such variation will be notified in writing
30 days prior to implementation of such price change.
Prices quoted and/or agreed with you are based on
the quantities of Goods or Services intended to be
ordered by you over a specific period. We reserve
the right to vary the price if you fail to order such
quantities.
TITLE AND RISK
(a) Title to the Goods or
Services will pass to you from us on payment in full
of the Purchase Price, and all risk and loss or damage
to the Goods will pass to you upon handover by USBshop
at its premises.
(b) Until such time as payment has been received
by us in accordance with paragraph (a) of this clause
you shall:-
(i) hold the Goods as our fiduciary agent and bailee;
(ii) store and label the Goods in such a manner to
enable the Goods to remain separate from all other
goods of yours and to be clearly identifiable as the
property of USBshop;
(c) USBshop shall have the right to maintain an action
for price of the Goods notwithstanding that the property
in the Goods shall not have passed to you.
(d) In the event of any
sale or other disposition of the Goods by you, before
you have paid USBshop, you shall hold on trust for
us the whole of the proceeds of sale and/or the relevant
book debt (or if the Goods have been mixed with or
incorporated into other Goods, a just proportion of
the proceeds of sale and/or the relevant book debt)
which proceeds shall not be mixed with any other monies
or paid into an overdrawn account.
DELIVERY - Any delivery date quoted in respect of
your Purchase Order is our best estimate and is subject
to you providing us in due time with all necessary
order and shipping information. Under no circumstances
shall any carrier be deemed to be an agent of USBshop.
TRADE MARKS - You agree not to remove, alter or deface
or allow to be removed altered or defaced any marks,
names or numbers affixed to the goods without the
written consent of USBshop.
FORCE MAJEURE - We shall not be in default of, or
liable for any delay or failure of compliance with,
this Agreement due to acts of nature and/or acts of
God (including but not limited to fire or flood, epidemics,
wars or riots), public enemy, acts of civil or military
authority (including but not limited to any government
action), freight embargo, strike, acts or omissions
of you or your nominated suppliers, shortage of supplies
or materials, or any other cause which is beyond our
control, during such happening or event.
PAYMENT - All sums payable in respect of the Goods
or Services invoiced by USBshop must be paid within
30 days from invoice date, unless otherwise agreed
in writing by USBshop. Time shall be of the essence
and interest shall accrue on all outstanding accounts
from the date upon which payment falls due until the
actual date of payment being received by us at a rate
of 5% above the US base bank rate from time to time
and shall accrue at such rate after as well as before
any judgement.
If you default on payment of any sums owing to us,
then we shall be entitled to withhold delivery of
the Goods or Services and of any further Goods or
Services ordered by you and to cancel any contract
for the same and to treat the Agreement as repudiated
by you and to recover damages accordingly or to affirm
the Agreement and to recover the purchase price from
you. In the event of non-payment by you by the due
date we shall be entitled, in addition to all other
rights, to enter upon your land or premises where
the Goods may for the time being be and recover possession
of them. We may use such force as is necessary to
enter the premises and remove the Goods. Without prejudice
to other provisions of this clause, if USBshop has
granted credit facilities to you and you default in
any payment thereunder, USBshop shall be entitled
to withdraw or vary such credit facility at any time
by summary notice without either giving any reason
for so doing or incurring any liability to you thereby.
In the event that legal action is taken by USBshop
against you for breach of any payment obligations
hereunder or otherwise, you shall be responsible for
all costs and disbursements incurred by USBshop (including,
but not limited to, legal and/or attorney's fees)
on an indemnity basis.
SUPPLIER'S WARRANTY AND LIABILITY
- USBshop shall discharge its obligations hereunder
with reasonable skill and care and in accordance
with its own established internal procedures.
- With the exception of paragraph (e) below, the
aggregate liability of USBshop in respect of any
loss or damage to you shall be limited to damages
which shall in no event exceed the purchase price
of the Goods and/or Services purchased by you under
this Agreement.
- Notwithstanding any other provision in this Agreement,
USBshop expressly excludes liability for indirect,
special or consequential loss or damage in respect
of the Goods and/or Services, including but not
limited to loss or damage to data or to other equipment
or property, (whether or not the same may be in
USBshop's care, custody or control) or for loss
of profit, business, revenue, goodwill or anticipated
savings.
- In the event that any exclusion or limitation
of liability contained in these Terms and Conditions
shall be held to be invalid for any reason under
any applicable rule of law, it shall to that extent
be deemed to be omitted but if USBshop then becomes
liable for loss or damage which would otherwise
have been excluded, such liability shall be subject
to the other limitations and provisions set out
in this Agreement.
- USBshop does not exclude liability for death or
personal injury to the extent that the same arises
directly from the negligence of USBshop or its employees.
- USBshop shall not be liable for any loss of and/or
damage to any consigned material supplied to us
by you or any third party. You shall retain title
to, and be solely responsible for any and all risk
in such material.
- A person who is not
party to this Agreement shall have no right under
the Contracts (Rights of Third Parties) to
enforce any term of this Agreement. This provision
does not affect any right or remedy of any person
which exists or is available otherwise than pursuant
to that Act.
ON-LINE ORDERS - USBshop has the right to cancel on-line orders if the ordered products is discontinued or it is not in stock
CONFIDENTIALITY - Except with our written consent
or as required by law you shall not use or disclose
to any other person any information relating to the
Goods or Services or to this Agreement, where such
information is indicated by us either expressly or
by implication as being confidential, except to your
employees obligated to hold such information and to
whom disclosure is necessary.
ASSIGNMENT - You shall not, without our prior written
consent assign any of your rights or obligations hereunder
to any other person or company.
EXPORT CONTROL - You undertake to comply with and
not to do anything which would render us in contravention
of any Export Regulations.
CANCELLATION - No cancellation of any Purchase Order
shall be accepted unless;
(a) the cancellation is received in writing,
and
(b) we accept your cancellation conditional upon
you agreeing within a reasonable time to pay us:
- the sales value of that part of the Goods completed
and work done in connection with the Purchase Order
and any components and/or materials purchased by us
which cannot reasonably be used elsewhere within a
reasonable period.
- any other costs and
liabilities which we incur by reason of your cancellation
Any extra cost or liability incurred by us due to
suspension of work or rescheduling of deliveries of
Goods or Services arising out of or resulting from
your instructions or lack of or mistaken instructions
or to any interruptions or delays attributable to
you shall be added to the price of Goods or Services
and paid for accordingly.
SOFTWARE - With respect to all operating system software
and applications to be supplied hereunder, the following
provisions shall apply.
(a) Where you have been furnished with a USBshop or
a third party software licence, the same must be
signed and returned to us within seven (7) days
or as otherwise specified in the said licence unless
the said licence is a "shrink wrap" licence.
In the event that you fail to sign and return the
said licence in accordance with this sub-clause:
- USBshop reserves the right to withhold release
of the software; or
- if the same has been delivered, to collect the
software from you.
(b) In the absence of a USBshop or a third party software
licence being furnished to you on issue of USBshop's
letter of acceptance or upon delivery of the software,
you hereby accept a non-exclusive, non-transferable
licence to use the software upon the terms of this
Agreement where the same shall apply including the
following:
- You undertake not to copy, reproduce, translate,
adapt, vary or modify the software nor to communicate
the same to any third party without USBshop's consent
and to use the software only on the equipment specified
or for the use with which the software is licensed.
- The licence hereby granted shall continue until
USBshop terminates the licence at its sole discretion
by written notice.
INSTALLATION - You shall be solely responsible for
installation of the Goods and Services.
INTELLECTUAL PROPERTY - No transfer or licence of
any intellectual property right whatever is given
or implied by these Terms and Conditions Of Sale.
If there is to be any such transfer or licence by
either party, it must be expressly agreed in writing
by the parties, as must any dealing with any intellectual
property rights which may be created by any activity
by the parties under any agreement between them. Such
express agreement must be made at the same time as,
or before, any agreement based upon these Terms and
Conditions Of Sale. You undertake that you will not
infringe the intellectual property in the Goods where
such property belongs to USBshop. You undertake that
you will not copy or otherwise reproduce (other than
for normal system operation), translate, adapt, vary,
modify, disassemble, decompile or reverse engineer
the whole or part of the software save solely in the
circumstances permitted by the legal
protection of Computer programs.
DEFECTS WARRANTY - We warrant that Goods, with the
exception of Software, shall be free from defects
in workmanship for a period of 45 days (or other period of time stated in the invoiced issue by us)
from handover
by USBshop at its premises. We will at our option
either repair, replace or refund the price you have
paid for the Goods (with the exception of Software)
which have failed within the warranty period by reason
of faulty design (other than any design made, furnished
or specified by you) or workmanship provided that:
(a) you notify us immediately of the failure
and obtain authorisation from USBshop for prompt return
of goods, carriage paid by you, with a full written
report on the failure unless we agree to inspect in
situ.
(b) the Goods have been properly stored, installed,
and maintained and used having regard in particular
to the applicable specifications and instructions
relating to the Goods.
(c) our liability in the case of Goods not of
our manufacture shall in no circumstances extend beyond
any corresponding liability to us of the manufacturer
of such goods.
(d) the goods have not been repaired or modified
by a third party other than USBshop.
(e) all warranty seals
if any on the Goods are intact.
We shall pay for the transport and shipping costs
associated with returning the Goods to you.
If, upon inspection, it is found that the returned
Goods are not defective within the terms of our Warranty,
you shall pay our standard repair charges to repair
the Goods including inspection costs and all transport
and shipping costs associated with returning the Goods
to you.
Goods supplied under these Terms and Conditions (excluding
software) either will be newly manufactured or will
have been reassembled or reconditioned from serviceable
new and used parts, and will have been thoroughly
inspected and tested for good working order.
We shall not be liable for any consequential loss
or damage whatsoever as a result of any defect in
the Goods. We shall have no liability whatsoever for
or as a result of the condition of the Goods or their
fitness or suitability for any particular purpose.
CHANGES TO GOODS AND SERVICES - USBshop reserves
the right to change any aspect of any of the Goods
and Services supplied at its sole discretion, including
but not limited to changes in the description, part
number, catalogue details, packaging, marketing materials,
specifications, instructions or technical changes
within the Goods and Services themselves.
INSOLVENCY - We shall have the right to terminate
the Agreement forthwith if you become insolvent or
bankrupt or make any arrangement with your creditors
or suffer a receiver or administrative receiver to
be appointed over your assets or (in the event that
you are a body corporate) you enter into liquidation
or suffer or allow or undergo any equivalent insolvency
process under the laws of any jurisdiction throughout
the world and in any such circumstances we shall have
no further obligation hereunder and the price for
Goods delivered shall become immediately due and payable.
REPRESENTATION - Unless otherwise permitted under
the terms of a separate and fully executed Distribution
Agreement entered into between you and USBshop, it
is agreed and understood that you are not the agent
or representative of USBshop and that you have no
authority or power to bind, contract in the name
of, or to create a liability against USBshop in any
way or for any purpose and that you will not hold
yourself out to third parties as having any such authority
or power.
COMPLIANCE WITH REGULATIONS - You warrant that you
will comply with the provisions of all relevant statutes,
regulations and by-laws and that you have obtained
every necessary licence or consent that may be required
in connection with the on-sale and or use of the equipment
supplied.
WAIVER - Failure of either party to enforce, at any
time, any provisions, of this Agreement shall not
be construed as a waiver of such provision or of any
other provisions, or of the right of such party thereafter
to enforce such provision.
SEVERANCE - Any provision of this Agreement which
is or may be void or enforceable shall to the extent
of such invalidity be deemed severable and shall not
affect any other provision of this Agreement.
APPLICABLE LAW - Any controversy or claim of whatever
nature arising out of or relating to this contract,
its formation or breach thereof shall be governed
by the Laws of the state of California whose Courts shall be the exclusive
Courts of competent jurisdiction.
