Terms and Conditions for Sale of Products

 

NOTICE: Sale of any Products or Services is expressly conditioned on Customer’s assent to these Terms and Conditions. Any acceptance of Delkin Devices’ offer is expressly limited to acceptance of these Terms and Conditions and Delkin Devices expressly objects to any additional or different terms proposed by Customer.

 

Application of Terms

These Delkin Devices, Inc. (“Delkin Devices”) terms and conditions exclusively govern and control, and entirely supersede, and are in lieu of any other terms and conditions, if any, in the Customer’s purchase order or any other document offered or proposed by Customer in connection with the acquisition of any Delkin Devices products (“Products”) by Customer. All other terms or conditions of sale proposed or offered by Customer are hereby expressly rejected in their entirety. No other terms shall be valid unless specifically agreed to in writing and signed by an authorized employee of Delkin Devices. Failure of Delkin Devices to object to the provisions in any document sent by Customer shall not be deemed a waiver of these terms or acceptance of any terms the Customer may have requested. Delkin Devices sale or other transfer of Products are governed only by these terms and conditions of sale. This sale is made subject to the terms and conditions of sale contained in Seller’s current catalog, which terms and conditions are incorporated herein by reference. To the extent that terms and conditions printed hereon conflict with those of Seller’s current catalog or website, those printed hereon shall control. Customer shall be deemed to have expressly accepted these terms and conditions of sale if Customer requests or receives delivery of any Products. All requests for Products are subject to approval by Delkin Devices. Delkin Devices, Inc. reserves the right to restrict or allocate Products.

 

Payment, Credit and Interest

Delkin Devices may in its sole discretion require payment in cash in advance of shipment of Products or otherwise change the terms of Customer’s credit or delay the shipment, whether or not in transit, or cancel Customer’s order without Delkin Devices incurring any liability for loss or damage of any kind by reason of such change, delay or cancellation and with Customer remaining liable to pay for all Products already shipped. Interest on overdue payments shall be payable at the rate of one and half percent (1.5%) per month. In the event that legal action is taken by Delkin Devices Customer shall be liable for all Delkin Devices attorney’s fees and costs of such action. Delkin Devices retains (and Purchaser grants to Delkin Devices by submitting a purchase order) a security interest in the Products to secure payment in full, and Customer agrees to execute any additional documents necessary to perfect such security interest.  If Purchaser fails to make timely payment of any amount invoiced hereunder, Customer agrees that Delkin Devices shall have the right to request, and Customer agrees to return to Delkin Devices, any Products in Customer’s inventory for which Delkin Devices has not been paid in full.  The Purchaser agrees it will not transfer for the benefit of other creditors or any other reason the  possession of or any right, title or interest in any Products for which Delkin Devices has not been paid in full.

 

Shipment

All Products are sold F.O.B. Delkin Devices warehouse in Poway, California USA, unless another location is specifically designated in writing by Delkin Devices, Inc. Title to and risk of loss of Products pass to Customer at the F.O.B. point. Customer shall be responsible for all costs associated with shipping and insurance as well as any necessary customs clearances and duties (at or after the F.O.B. point). Delivery dates acknowledged or confirmed by Delkin Devices are estimates only, and Delkin Devices shall not be responsible for delays in shipment or delivery or any resulting claims or damages for any reason. Customer must notify Delkin Devices of any shipping discrepancies within forty-eight hours of receipt.

 

Pricing

Prices quoted or shown on acknowledgments are in U.S Dollars and are subject to changes by Delkin Devices without notice. Unless specified otherwise on the face hereof, the price or prices quoted on an acknowledgment may be adjusted on invoicing to reflect Delkin Devices’ change in invoice price as of the date of shipment.

 

Rescheduling and Cancellations

Orders for standard off-the-shelf product cannot be cancelled or rescheduled without the prior written consent of Delkin Devices. Orders for customized product are considered non-cancellable and non-returnable (NCNR) due to their unique attributes, unless special arrangements have been made at time of order placement.  Customer’s wrongful non-acceptance, cancellation, or repudiation shall entitle Delkin Devices to recover, in addition to any incidental damages: (1) the full price of such Products: or (2) where other customers exist, damages equal to the profit which Delkin Devices would have realized had Customer performed. Delkin Devices shall additionally be entitled to recover expenses incurred in connection with procuring or providing special services, special tooling, special supplies, and similar expenses.

 

Limited Warranty and Returns

Delkin Devices warrants to Customer that Products shall be delivered free from defects in material and workmanship and shall conform to Delkin Devices published specifications for such Products.  The warranty period for this warranty is three (3) years from delivery for MLC based Industrial storage Products, five (5) years from delivery for SLC based Industrial storage Products and the individually stated period from delivery for all other Retail Product groups.  If Products do not meet the above warranty, Customer shall promptly notify Delkin Devices in writing prior to expiration of the warranty period. Delkin Devices shall (i) at its sole option, repair the parts or replace the defective Product with a form, fit and functional equivalent. Warranty repair or replacement by Delkin Devices shall not extend or renew the applicable warranty period. Customer shall bear the costs of access for Delkin Devices’ remedial warranty efforts (including removal and replacement of systems, structures or other parts of Customer’s facility or products), de-installation, re-installation and transportation of defective Products to Delkin Devices and back to Buyer. This warranty is conditioned upon (a) proper storage, installation, use, operation, and maintenance of Products, (b) modification or repair of Products only as authorized by Delkin Devices in writing, and (c) the Product not having exceeded its normal useful life. Failure to meet any such conditions renders the warranty null and void. Seller is not responsible for normal wear and tear. This warranty provides the exclusive remedies for all claims based on failure of or defect in Products or Services, regardless of when the failure or defect arises, and whether a claim, however described, is based on contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise. The warranties provided herein are exclusive and are in lieu of all other warranties, conditions and guarantees whether written, oral, implied or statutory. NO IMPLIED OR STATUTORY WARRANTY, OR WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES. Customer can obtain a Product return claim number from Delkin Devices Industrial Sales Associates to initiate a valid return of Products. All Products returned without an authorized Product return claim number will be refused and returned to Customer.

 

Limitations

Delkin Devices, Inc. liability to Customer, or any third party that may use a Product, shall not exceed the purchase price of the Product. Technical advice and specifications regarding the Products sold hereunder that are solicited or received from Delkin Devices shall be used by Customer at its own risk. DELKIN DEVICES EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY DIREST, SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES SUFFERED AS A RESULT OF USE OF OR DEFECTS IN ANY PRODUCT.

 

Law of the State of California

The entire transaction contemplated hereunder shall be governed by the laws of the state of California and Delkin Devices and Customer agree that the exclusive jurisdiction and venue for any dispute relating hereto are the state and Federal courts in San Diego California.

 

U.S. Government Contracts

This Provision applies only if a transaction is for the direct or indirect sale to any agency of the U.S. government and/or is funded in whole or in part by any agency of the U.S. government. Customer agrees that all Products and services provided by Delkin Devices meet the definition of “commercial-off-the-shelf” (“COTS”) or “commercial item” as those terms are defined in Federal Acquisition Regulation (“FAR”) 2.101. To the extent the Buy American Act, Trade Agreements Act, or other domestic preference requirements are applicable to this transaction, the country of origin of Products is unknown unless otherwise specifically stated by Delkin Devices in writing. Customer agrees any services offered by Delkin Devices are exempt from the Service Contract Act of 1965 (FAR 52.222-41). Customer represents and agrees that the transaction is not funded in whole or in part by American Recovery Reinvestment Act funds unless otherwise specifically stated in writing by Customer. The version of any applicable FAR clause listed in this Article 20 shall be the one in effect on the effective date of the transaction. If Buyer is an agency of the U.S. Government, then as permitted by FAR 12.302, Customer agrees that all paragraphs of FAR 52.212-4 (except those listed in 12.302(b)) are replaced with these Terms and Conditions. Customer further agrees the subparagraphs of FAR 52.212-5 apply only to the extent applicable for sale of COTS and/or commercial items and as appropriate for the transaction value. If Customer is procuring the Products or Services as a contractor, or subcontractor at any tier, on behalf of any agency of the U.S. Government, then Customer agrees that FAR 52.212-5(e) or 52.244-6 (whichever is applicable) applies only to the extent applicable for sale of COTS and/or commercial items and as appropriate for the transaction value.

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