TERMS AND CONDITIONS
The following terms and conditions shall apply to
all sales by Scansmart.com (“Scansmart”) to the Purchaser of
any and all Products and to all quotations and offers made by and purchase
orders accepted by Scansmart. Any different or additional terms and conditions
contained in any other document submitted by the Purchaser are hereby rejected.
Neither Scansmart’s commencement of performance or shipment or delivery of product
shall be deemed or construed as acceptance of any additional or different terms
and conditions proposed by Purchaser. Purchaser agrees that all purchase orders
placed by Purchaser, shall be governed by this Agreement, whether or not such
terms and conditions accompany Scansmart’s shipment of products.
1.
Purchase Price and Taxes. The
purchase prices for Products shall be the amounts set forth in the purchase
order. Unless otherwise agreed in writing by Scansmart, such prices are exclusive of
any applicable sales, use, excise, property or other federal, state, county,
municipal, local or foreign taxes, value-added or other indirect taxes, customs
duties, tariffs or other imposts, and any related penalties and interest
(collectively, the “Taxes”). Purchaser shall pay when due any Taxes (other than
any tax based solely on the net income of Scansmart) arising out of the transactions
contemplated by this Agreement and shall indemnify and hold harmless Scansmart from
any and all such Taxes.
2.
Terms of Payment and Delivery.
Except where otherwise provided herein or
specified in writing by Scansmart (i) the terms of payment hereunder are net cash
fifteen (15) days from the date of Scansmart’s invoice, without deduction or setoff
of any kind, (ii) all payments shall be made in United States dollars, and (iii)
products shall be shipped to Purchaser F.O.B. origin. Customers will be charged
COD unless Scansmart’s credit application has been completed and approved. Most
major credit cards are accepted. An invoice will be forwarded at the time of
shipment, and Scansmart shall use reasonable efforts to ship Products in accordance
with Scansmart’s announced shipment schedule by the method specified by Buyer;
provided, however, that all shipment and delivery dates are approximate.
Shipments of Products are in all cases subject to availability, and partial
shipments by Scansmart of quantities of Products requested in the Purchase Order are
permitted.
3.
Returns. EXCEPT FOR CUSTOM
LABELS AND SOFTWARE, all other merchandise may be returned to Scansmart within 15
days from date of shipment under the following conditions: 1) A Return Material
Authorization (“RMA”) number is first obtained from Scansmart’s Customer Service
Department prior to returning any qualified product. 2) All returned merchandise
must be packaged in the original manufacturer’s box(s) and include all manuals,
cables, warranty cards, static bags, etc. 3) Returned items must be unused,
clean and free of damage of any kind. 4) Purchaser shall be responsible for any
freight charges incurred in returning merchandise to Scansmart. A minimum restocking
fee of 25% will be charged by Scansmart for any item returned. All merchandise is
non-returnable to Scansmart after 15 days from date of shipment. ALL CUSTOM LABELS
ARE SUBJECT TO OVER / UNDER RUNS OF 10%. EXACT QUANTITY RUNS MUST BE SPECIFIED
AT TIME OF ORDER AND WILL INCUR AN ADDITION CHARGE; SALES OF CUSTOM LABELS ARE
FINAL.
4.
Risk of Loss. Anything herein
or in applicable law to the contrary notwithstanding, Purchaser shall bear the
risk of loss, deterioration or damage to the Products from the time they are
placed by Scansmart in the possession of a carrier.
5.
Reservation of Security Interest.
Scansmart reserves and retains a security interest in
the Products and the proceeds thereof until payment therefore in full has been
made by Purchaser. This contract constitutes a security agreement between
Purchaser, as debtor, and Scansmart, as secured party, under the Uniform Commercial
Code, and Scansmart has the rights and remedies of a secured party thereunder.
Purchaser authorizes Scansmart to file financing statements and to do any other act
or thing necessary or useful in perfecting Scansmart’s security interest in the
Products and shall cooperate fully with Scansmart in this regard.
6.
Service Fee and Collection Costs.
Purchaser shall pay a delinquency and service fee of ten percent (10%) per annum
on amounts due Scansmart, computed for each twenty-four (24) hour period during which
payment remains in arrears.
7.
Acceleration. Scansmart may demand
immediate payment of any and all amounts owed by Purchaser to Scansmart hereunder or
under another contract of sale between Purchaser and Scansmart, and cancel any
previously accepted Purchase Order, by written notice to Purchaser, upon any
material breach by Purchaser of this Agreement.
8.
Warranties and Purchaser’s Remedies.
Scansmart transfers to Purchaser all warranties, if
any, that Scansmart has received from the manufacturer only to the extent provided by
the manufacturer and subject to all conditions of such manufacturer’s warranty.
Should any Products be found not to conform with the manufacturer's warranty
during the warranty period, Purchaser shall promptly notify Scansmart, and Scansmart
shall, at its sole option, shall (i) contact the manufacturer and request that
it provide to the Purchaser the remedy available from the manufacturer, if any;
(ii) repair or replace the defective Product; or (iii) refund to Buyer or issue
a credit to Buyer for the purchase price of the defective Product. Buyer must
contact Scansmart for a Return Material Authorization (“RMA”) number before returning
any Product for warranty repair.
9.
DISCLAIMER OF WARRANTIES.
THE WARRANTIES EXPRESSLY SET FORTH IN
THIS AGREEMENT ARE EXCLUSIVE. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN,
Scansmart DOES NOT MAKE ANY AND EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER ORAL OR
WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY USAGE OF TRADE OR COURSE OF DEALING,
INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE AND WARRANTY AGAINST INFRINGEMENT.
10.
LIMITATION OF LIABILITY.
Scansmart’S LIABILITY TO PURCHASER FOR DEFECTIVE OR NON-CONFORMING PRODUCTS, FOR
DELAY IN SHIPMENT OR DELIVERY, OR FOR ANY OTHER BREACH OF THIS AGREEMENT, SHALL
BE LIMITED TO ITS OBLIGATIONS AS STATED IN THIS AGREEMENT.
(a)
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, PURCHASER
EXPRESSLY AGREES THAT Scansmart SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR ANY
CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES, INCLUDING BUT
NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS OR LOSS OF GOOD WILL, WHETHER
CLAIMED UNDER CONTRACT, TORT, INDEMNITY OR ANY OTHER LEGAL THEORY.
(b)
PURCHASER EXPRESSLY AGREES THAT UNDER NO CIRCUMSTANCES SHALL Scansmart’S TOTAL
LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS
OR ANY SALE HEREUNDER (INCLUDING BUT NOT LIMITED TO ANY WARRANTY CLAIMS
HEREUNDER) EXCEED THE TOTAL AMOUNT THAT PURCHASER PAYS TO Scansmart HEREUNDER FOR THE
PURCHASE OF THE PRODUCT THAT IS THE SUBJECT OF SUCH LIABILITY.
(c)
Any action for breach herein or any other action otherwise arising
hereunder must be commenced within twelve (12) months after the cause of action
accrues, or such action shall be deemed barred.
11.
Purchaser’s Remedies Exclusive.
The purchaser’s remedies set forth herein shall be the sole and exclusive
remedies of purchaser and American Barcode Concepts’ sole and exclusive
liability.
12.
Patent Indemnification.
Purchaser shall hold Scansmart harmless against any expense or liability from claims
of unfair competition or infringement or contributory infringement of any
patents, trademarks or copyrights related to Products sold hereunder or to
Purchaser’s use of any Product in combination with products not supplied by
Scansmart.
13.
Force Majeure. Scansmart
shall be excused from liability for unusual delays or failure to deliver or fill
any Purchase Order where caused by acts of God, fires, floods, strikes, work
stoppages, accidents, allocations or other controls, or regulations, including
export or import regulations of any foreign or U.S. federal, state or local
government, shortage of trucks or any other means of transportation, fuels,
materials or labor, or any other cause beyond Scansmart’s reasonable control, whether
or not similar in kind or class to those mentioned.
14.
Miscellaneous. Any dispute or
difference between the parties pertaining to these terms and conditions may be
referred to arbitration and shall upon and after such reference be finally
settled by arbitration to be held at Phoenix, Arizona, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association. The terms
and conditions shall be construed and enforced pursuant to laws of the State of
Arizona, U.S.A., exclusive of the laws relating to conflict of laws. In the
event of any arbitration, litigation or other dispute arising as a result of or
by reason of these terms and conditions, the prevailing party in any such
dispute shall be entitled, in addition to any other damages assessed, to its
reasonable attorneys’ fees and all other costs and expenses incurred in
connection with settling or resolving such dispute. A waiver by either party
hereto of any term or condition hereof shall not be construed as a waiver or
modification of any other term or condition hereunder or any other contract
governing this contract. No rights or remedies are waived or modified by Scansmart
unless expressly waived in writing by Scansmart. If any part of this Agreement is
held void or unenforceable, such part shall be treated as severable, leaving
valid the remainder. Scansmart’s remedies herein provided shall be cumulative and in
addition to any other or further remedies provided by law or equity.
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