Terms and Conditions of Sale (The Detection Group)
APPLICABILITY: All tangible products, materials, components, goods, commodities and any other items (the “Products”) offered for sale by The Detection Group, Inc., or any of its successors or assigns (“Seller”), any monitoring and notification services, including any software and technology incorporated therein (the “Monitoring Services”) and any services for the installation and maintenance of any Products (the “Installation and Maintenance Services,” and together with the Monitoring Services, the “Services”) offered for sale by Seller are sold subject to these terms and conditions of sale (these “Terms and Conditions”). Seller’s performance of any contract is expressly made conditional on Buyer’s agreement to these Terms and Conditions, unless otherwise specifically agreed to in writing by Seller. No other terms and conditions, including any terms and conditions attached to, or contained within, Buyer’s request for quotation, acknowledgment, purchase order or other contract documentation shall apply, and all such terms are hereby rejected by Seller. Buyer’s acceptance of the Products or Services delivered by Seller constitutes Buyer’s agreement that these Terms and Conditions govern the purchase and sale of such Products or Services. THESE TERMS AND CONDITIONS SHALL SUPERSEDE ANY ADDITIONAL, DIFFERENT OR CONFLICTING TERMS PROPOSED BY BUYER OR CONTAINED ON BUYER’S PURCHASE ORDER OR ANY DOCUMENT OR INSTRUMENT SUBMITTED BY BUYER.
TERMS OF SALE: All sales of Products within the United States or within Canada are F.O.B. (shipping point). All international sales are F.O.B. (origin port). Title to the Products shall pass to Buyer, and risk of loss or damage to the Products shall be assumed by Buyer, as follows: (a) for shipments within the United States or within Canada, upon shipment of the Products from Seller’s facility; and (b) for international shipments, upon delivery to the origin port.
PAYMENT TERMS: Unless otherwise stated in Seller’s sales order confirmation, Seller’s invoices are due and payable thirty (30) days from the date of invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, compounded daily from the date due until the date paid. Buyer will reimburse any costs or expenses (including attorneys’ fees) incurred by Seller to collect any amount that is not paid when due. Seller reserves the right to require pre-payment from, or to refuse to sell to, any Buyer whose account is overdue or who has an unsatisfactory credit or payment record.
SECURITY AGREEMENT: Buyer grants Seller a purchase money security interest in the Products sold hereunder, including all accessions thereto and replacements thereof, and all proceeds thereof (collectively, the “Collateral”) to secure the payment of the purchase price of such Collateral. Buyer grants Seller a limited power of attorney to file one or more financing statements signed by Seller on behalf of Buyer and authorizes Seller to use a copy of these Terms and Conditions as an exhibit to any financing statement. Buyer agrees to cooperate fully with Seller in executing any additional documents, instruments, financing statements or amendments thereto as Seller may request to perfect or continue the security interest created by these Terms and Conditions.
SPECIAL PRODUCTS: Orders for special or modified Products are non-cancelable. In the event that Buyer cancels an order for such Products, Seller shall charge Buyer an amount equal to Seller’s costs and expenses incurred in performing the purchase order prior to receipt of notice of cancellation.
Products: Seller warrants each Product to be free from defects in material and workmanship under normal usage for a period of one year from the date of original shipment. In the event of such defects within the warranty period, Seller will, at its option, replace or recondition the product without charge.
THE WARRANTIES SET FORTH HEREIN ARE GIVEN EXPRESSLY AND ARE THE ONLY WARRANTIES GIVEN BY SELLER WITH RESPECT TO THE PRODUCTS AND SERVICES. SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED. TO THE FULL EXTENT PERMITTED BY LAW, SELLER HEREBY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
The remedy described in the first paragraph of this warranty shall constitute the sole and exclusive remedy for breach of warranty, and Seller shall not be responsible for any incidental, special or consequential damages, including without limitation, lost profits or the cost of repairing or replacing other property which is damaged if any Product does not work properly, other costs resulting from labor charges, delays, vandalism, negligence, fouling caused by foreign material, damage from adverse water conditions, chemical, or any other circumstances over which Seller has no control. This warranty shall be invalidated by any abuse, misuse, misapplication, improper installation or improper maintenance or alteration of the Product
Some States do not allow limitations on how long an implied warranty lasts, and some States do not allow the exclusion or limitation of incidental or consequential damages. Therefore the above limitations may not apply to Buyer. This Limited Warranty Buyer you specific legal rights, and Buyer may have other rights that vary from State to State. Buyer should consult applicable state laws to determine Buyer’s rights. SO FAR AS IS CONSISTENT WITH APPLICABLE STATE LAW, ANY IMPLIED WARRANTIES THAT MAY NOT BE DISCLAIMED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO ONE YEAR FROM THE DATE OF ORIGINAL SHIPMENT.
LIMITATION OF LIABILITY: IN NO EVENT SHALL SELLER BE LIABLE, IN CONTRACT, TORT, STRICT LIABILITY, OR UNDER ANY OTHER LEGAL THEORY, FOR INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER SELLER WAS INFORMED ABOUT THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT SHALL SELLER’S LIABILITY EXCEED AN AMOUNT EQUAL TO THE SALES PRICE OF THE PRODUCTS. THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULL EXTENT PERMITTED BY LAW. BUYER ASSUMES ALL RESPONSIBILITY FOR THE FINAL SELECTION, TESTING AND VALIDATION OF PRODUCTS PURCHASED FROM SELLER AND THE FITNESS OF SUCH PRODUCTS FOR BUYER’S APPLICATION.
INSPECTION: Buyer shall be responsible for inspecting all Products shipped hereunder prior to acceptance, provided, that if Buyer shall not have given Seller written notice of rejection within thirty (30) days following shipment to Buyer, the Products shall be deemed to have been accepted by Buyer.
RETURNED GOODS: Seller will only accept returned Products from customers in the United States and Canada. No material shall be returned to Seller without authorization.
TRADE COMPLIANCE: Sale or retransfer of Products supplied by Seller must comply with applicable laws restricting the export or re-export of those Products (“Export Controls”), including all economic or financial sanctions and trade embargoes imposed, administered or enforced from time to time by the U.S. or EU government or other relevant sanctions authority with jurisdiction over Seller (“Sanctions Laws”). Buyer understands and agrees that with respect to Seller’s Products provided to Buyer: (a) Buyer will not export, re-export or otherwise transfer Seller’s Products to (i) a country, territory or person to which/whom such export, re-export or transfer is prohibited by applicable law, including without limitation Export Controls and Sanctions Laws; or (ii) to a country or territory that is itself the subject or target of comprehensive Sanctions Laws including U.S. Sanctions (“Sanctioned Territories”). As of the date hereof, the Sanctioned Territories are Crimea, Cuba, Iran, North Korea, and Syria, although the U.S. government may add or remove Sanctioned Territories in the future; and (b) Buyer further confirms that it is not acquiring the Products for any military, nuclear or missile end use or end user. If this is not correct, Buyer is required to notify Seller immediately at email@example.com.
GOVERNING LAW/ DISPUTES: These Terms and Conditions shall be governed by the laws of the Commonwealth of Massachusetts without giving effect to its conflict or choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms and Conditions. All disputes under these Terms and Conditions and all claims arising out of or related to these Terms and Conditions shall be resolved by courts located in the Commonwealth of Massachusetts. Buyer agrees and consents to the exclusive jurisdiction and venue of the federal and state courts in the Commonwealth of Massachusetts, and Buyer waives any jurisdiction or venue defense otherwise available.
FORCE MAJEURE: Seller’s performance shall be excused, and Seller shall not be liable or responsible to Buyer, nor be deemed to have breached any obligation to Buyer in the event of any acts of God; flood, fire, earthquake, or other natural disaster; disease; explosion, war, invasion, hostilities, terrorism, riot, or other civil unrest; government action, order or law, embargoes, or blockades; national or regional emergency; strikes, labor stoppages or slowdowns, or other industrial disturbances; shortage of adequate power or transportation facilities; or other events beyond the control of Seller.
MISCELLANEOUS: Prices are subject to change without notice and supersede all previous quotations. Seller reserves the right to change or modify Product or Service design or construction without prior notice and without incurring any obligation to make such changes or modifications to Products or Services previously sold. In the event that any of the provisions of these Terms and Conditions are held to be invalid or unenforceable in whole or in part, those provisions to the extent enforceable and all other provisions shall nevertheless continue to be valid and enforceable as though the invalid or unenforceable provisions had not been included in these Terms and Conditions. Buyer shall not assign its rights or its obligations under these Terms and Conditions without the written consent of Seller. The failure of Seller to enforce at any time any of the provisions of these Terms and Conditions shall in no way be construed to be a waiver of any such provisions, or the right of Seller thereafter to enforce each and every such provision. Seller and Buyer are independent contractors; neither is an agent or employee of the other or has any authority to assume or create any obligation or liability of any kind on behalf of the other.