“Terms and Conditions of Use” Please read these terms and conditions carefully before any use of this site or the information contained herein. General: These terms and conditions supersede and supplant all prior communications, whether oral or written, and contain the entire agreement of the parties with respect to the purchase by the Buyer from Capax. All Buyer purchase orders are subject to these terms and conditions and all terms and conditions presented on or accompanying a Capax order quotation. Capax specifically objects to and rejects any different or additional terms and conditions in Buyer’s printed purchase order(s) or associated form and/or documents and such terms shall not be binding on Capax unless agreed to in writing by an authorized representative of Capax. These terms and conditions, together with the Capax order quotation shall constitute the entire agreement between Capax and Buyer with respect to any Buyer purchase order and the products provided hereunder. Capax, in its sole and absolute discretion, shall have the right to correct any clerical errors or omissions to orders placed by Buyer and processed by Capax. Capax's failure to insist, in one or more instances, upon the performance of any term or terms shall not be construed as a waiver or relinquishment of Capax's right to such performance of such term or terms, and Buyer's obligations with respect thereto shall continue in full force and effect. Delivery-Risk of Loss and Claims: “Delivery” of product shall occur F.C.A. Capax’s factory and Buyer shall pay all shipping costs from that point. Responsibility of Capax shall cease and title and risk of loss or damage to products shall transfer to Buyer upon Capax’s delivery to and receipt by a common carrier. Buyer shall bear sole responsibility for the timely and proper submission to the appropriate carrier or other responsible party of all claims for loss of or damage to products occurring after Delivery. Cancellation or Termination: If the Buyer cancels or terminates the order in whole or in part, the following charges apply; (1) the price for finished products, (2) Cost of work in process. “Cost” is defined to include material, direct labor, overhead, material handling, selling, general and administrative expenses and profit. Limited Warranty: CAPAX warrants that its product(s) will be free from defects in workmanship or materials at the time of delivery, subject to the provisions of this Limited Warranty. Any claims by Buyer that any product fails to conform to this warranty must be made within sixty (60) days after delivery of such product and shall describe the alleged non-conformity. Buyer shall retain allegedly non-conforming product for inspection by an authorized representative of CAPAX or, if requested by CAPAX, shall return such products to CAPAX promptly upon receiving CAPAX's written return authorization and instructions. If product(s) are found by CAPAX to fail to conform to this warranty, CAPAX's entire liability and Buyer's exclusive remedy whether in contract, tort or otherwise, for any claim related to or arising out of breach of the warranty covering products shall be correction of defects by repair, replacement, or credit, at CAPAX's discretion. Refurbished product may be used to repair or replace the product. Buyer shall have no claim to product, which was replaced. CAPAX assumes no liability with respect to (a) defects caused by modification, repair, installation, operation or maintenance; (b) damage not caused by CAPAX; or, (c) negligent or other improper use of the product. No agent, distributor, or representative is authorized to make any warranties on behalf of CAPAX or to assume for CAPAX any other liability in connection with any product. WITH RESPECT TO ALL PURCHASES OF PRODUCT BY BUYER FROM CAPAX, THE ABOVE
WARRANTY IS THE ONLY WARRANTY MADE BY CAPAX TO BUYER AND REPLACES ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, AND ALL OTHER OBLIGATIONS OF CAPAX,
INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE SPECIFICALLY DISCLAIMED
AND EXCLUDED BY CAPAX. LIMITATION OF LIABILITY: CAPAX SHALL NOT IN ANY EVENT BE LIABLE, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHER GROUNDS, FOR INCIDENTIAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF USE OF PRODUCT OR ASSOCIATED GOODS, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, OR CLAIMS OF BUYER'S CUSTOMERS. CAPAX'S LIABILITY FOR ANY CLAIM FOR LOSS OR DAMAGE ARISING OUT OF THIS CONTRACT OF FROM THE PERFORMANCE OR BREACH THEREOF OR CONNECTED TO ANY PRODUCT SUPPLIED HEREUNDER, WHETHER BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHER GROUNDS, SHALL NOT EXCEED THE PRICE ALLOCABLE TO SUCH PRODUCT OR PART THEREOF INCLUDED IN THE CLAIM, REGARDLESS OF CAUSE OR FAULT. Charges and Costs: Unless otherwise expressly agreed, all taxes, duties, assessments and other charges imposed or collected by any governmental or taxing authority shall be paid by Buyer. Any increase in Capax's cost of performance resulting from increased freight rates, increased or additional freight surcharges, changes in currency exchange rates, additional taxes, duties, assessments, or other charges imposed by any governmental or taxing authority, increased insurance rates, and all other additional charges relating to the production, export, sale, loading, unloading, delivery, and transportation of products, shall be for Buyer's account. If Buyer claims exemption from any taxes, Buyer will provide Capax with documentation required by the taxing authority to support the exemption. Shipment: All shipment or delivery dates are approximate and shall not be deemed to be fixed or guaranteed delivery dates. Partial shipment and/or transshipment shall be permitted. No non-conforming tender, or delay or failure in the shipment or delivery of any one lot shall excuse Buyer from accepting tender of any remaining installments hereunder. All demurrage and other charges resulting from Buyer's delay in accepting delivery shall be for the Buyer's account. In case of failure of performance by Buyer hereunder, Capax may defer further shipments or deliveries or, at it's option, cancel delivery of any products which have not been shipped or delivered, and any losses, liabilities, costs, or expenses resulting from deferral or cancellation shall be for Buyer's account. Unless otherwise agreed to in writing by Capax, Buyer shall be responsible for and bear all costs of obtaining all necessary export and import licenses, permits, and clearances. Force Majeure: Capax shall not be liable for the delay of or failure to make shipment or delivery for any cause beyond it's reasonable control which affects Capax or any other person (whether known or unknown to the Buyer) involved in the sale, manufacturing, supply shipment, transportation or delivery of products, including but not limited to, strikes and other labor unrest, civil commotions, terrorism, war, riots, rules, laws, orders, restrictions, detentions, embargos, quotas or other actions of any government or any agency or sub-division of any government, shortages of supply of Goods or transportation from Capax's usual suppliers thereof and fires, accidents, floods, and other acts of God. Shipment or delivery dates shall be extended for a period equal to the time lost by reason of any such cause. Infringement: CAPAX SHALL NOT BE LIABLE IN ANY WAY FOR ANY LOSSES, LIABILITIES, SETTLEMENTS, COSTS OR EXPENSES (INCLUDING ATTORNEY'S FEES) PAID OR INCURRED BY BUYER OR ANY SUBSEQUENT PURCHASER, RESELLER, OR USER OF PRODUCTS RESULTING FROM ANY CLAIM THAT THEY OR THEIR SALE OR USE INFRINGE ANY PATENT, TRADEMARK, COPYRIGHT, DESIGN, OR OTHER INDUSTRIAL PROPERTY RIGHT OF ANY THIRD PARTY. If buyer shall have furnished the specifications for products, Buyer shall indemnify and defend Capax against any and all losses, liabilities, settlements, costs and expenses (including attorney's fees) paid or incurred by Capax resulting from any claim arising from Capax's compliance therewith. Capax Property: Unless otherwise agreed in writing, all materials, equipment and special tooling, including fixtures, molds, specifications, drawings, schematics and manufacturing or packaging aides, designed, created by Capax in the performance, manufacturing or packaging of the products covered by any order shall remain the property of Capax not withstanding the fact the Buyer may have paid any non-recurring engineering or similar charges or fees. Payment: Capax may modify credit terms or may place sales to Buyer on a "Payment In Advance" or on "Delivery Basis" at any time. Payment in full is due within thirty (30) days of the date of the invoice issued by Capax unless otherwise specified on the face of the invoice. If any payment is not paid in full when due, Buyer shall pay a late charge on the amount unpaid for each day from the due date until paid in full at a rate equal to the lower of 1 1/2% per month or the maximum permitted by law. Late charges shall be payable upon demand. The imposition or payment of a late charge shall not be deemed to extend the due date of any payment. Assignment: No transaction may be assigned by the Buyer without Capax's written consent. Attorney's Fees: The prevailing party in any action or proceeding brought to interpret or enforce this agreement shall be entitled to reasonable attorney's fees, costs and disbursements in addition to any other relief to which it may be entitled. Severability: The invalidity, in whole or in part, of any provision of this agreement shall not affect the validity or enforceability of any other provision. Law Governing: All sales shall be governed and construed
in accordance with the laws of the State of California. |