Sales Terms & Conditions
1. ACCEPTANCE AND CANCELLATION OF ORDERS.
Each order for goods is subject to acceptance in writing by a duly authorized agent of Advanced Power Solutions; any written acknowledgement of receipt of an order shall not, in and of itself, constitute such acceptance. Orders accepted by Advanced Power Solutions may be canceled by Buyer only upon written consent of Advanced Power Solutions. In the event of cancellation or other withdrawal of an order for any reason and without limiting any other remedy which Advanced Power Solutions may have as a result of such cancellation or other withdrawal, reasonable cancellation or restocking charges, which shall include all costs incurred by Advanced Power Solutions in fulfilling the order, shall be paid by Buyer to Advanced Power Solutions. Orders for items identified as non-cancelable and non-returnable (NCNR) or may be defined as customer specific goods will be identified and agreed to by Buyer at the time of order placement and such goods will be the sole liability of the Buyer.
All prices quoted and goods shipped are F.O.B. Advanced Power Solutions’ facility (or in the definition of International Commercial Terms - INCOTERMS 2010; EXW (Ex Works), Advanced Power Solutions’ facility). Title to and risk of loss of all goods shall pass upon Advanced Power Solutions’ delivery to carrier for shipment to Buyer. Unless otherwise agreed by Advanced Power Solutions in writing, Buyer shall pay all freight, handling, delivery and insurance charges for shipment of goods. Choice of carrier and shipping method and route shall be at the election of Advanced Power Solutions unless expressly designated in writing. Advanced Power Solutions shall not be liable for delays in delivery of or failure to perform due to causes beyond the reasonable control of Advanced Power Solutions, such causes shall include, without limitation, acts of God, acts or omissions of Buyer or civil or military authorities, fires, strikes, epidemics, quarantine restrictions, man-made or natural disasters, market constraints, and/or transportation delays. The contractual date of delivery, if any, shall be extended for a period equal to the time lost as a consequence of such delay without penalty to Advanced Power Solutions. In its sole discretion, Advanced Power Solutions may allocate, defer, delay or cancel the shipment of any goods which are in short supply. Advanced Power Solutions shall be entitled to refuse or to delay shipments upon failure by Buyer to pay promptly any payments due Advanced Power Solutions, whether on this or any other contract between Advanced Power Solutions and Buyer. Advanced Power Solutions shall have the right to deliver all goods covered hereby at one time or in portions from time to time within the time for delivery provided in such order.
a) Unless otherwise specified by Advanced Power Solutions in writing, payment in full or net amount owing, without offset or deduction, is due 30 days from date of invoice or as mutually agreed to. If payment is not received within such 30-day period, a late payment of 1% per month of the unpaid balance or the maximum amount allowed by law, whichever is less, shall be paid by Buyer.
b) All payments are accepted subject to collection. Buyer agrees to pay Advanced Power Solutions’ actual costs of collection, including without limitation reasonable attorney fees, costs and third party collection fees. Any payment received from Buyer may be applied by Advanced Power Solutions against any obligation of Buyer to Advanced Power Solutions under this or any other agreement, notwithstanding any statement or direction from Buyer with regard to such payment. Acceptance of any partial payment shall not constitute a waiver of Advanced Power Solutions’ right to payment in full of all amounts owing from Buyer to Advanced Power Solutions.
c) Advanced Power Solutions shall have the right to refuse to ship to Buyer on credit at any time and shipments made to Buyer on a C.O.D. or other basis shall be subject to the terms and conditions of sale contained herein.
4. INSPECTION AND ACCEPTANCE OF GOODS.
Buyer is deemed to have accepted goods unless written notice of rejection is given to Advanced Power Solutions within a reasonable time, which is agreed to be within ten (10) days after receipt. CLAIMS OF LATE DELIVERY are void unless made prior to receipt of goods, and receipt of goods shall constitute a waiver of any claim of late delivery. No return will be accepted without prior “Return Material Authorization Number” (RMA #) from Advanced Power Solutions with Buyer giving the reason for a return. Goods must be returned as directed by Advanced Power Solutions’ location issuing the RMA# and be in its original packaging. Returns of goods packaged in electrostatic packaging will not be accepted if electrostatic packaging has been opened.
5. Advanced Power Solutions’ RIGHT TO INCREASE PRICES.
Unless otherwise specified on the face of this Agreement, Advanced Power Solutions reserves the right to increase the selling price of any and all goods ordered by Buyer prior to shipment from Advanced Power Solutions’ place of business due to an increase in cost of such goods by Advanced Power Solutions’ Original Component Manufacturer (“OCM”) supplier. The selling price quoted to Buyer shall, upon an increase in price by Advanced Power Solutions’ OCM supplier, be increased by the same percentage of increase in Advanced Power Solutions’ costs for the goods and Buyer agrees to pay any such increased price in accordance with the terms hereof.
Advanced Power Solutions’ prices do not include sales, use, excise or similar taxes. Advanced Power Solutions shall properly impose upon, collect from Buyer, and timely remit to the appropriate governmental authorities any sales, use, or value added taxes, customs duties, tariffs or similar levies, including fines and penalties (“Taxes”) applicable to goods including Services sold, licensed, delivered, or furnished hereunder. Each Tax will be separately stated on any Advanced Power Solutions invoice. To the extent software including documentation is delivered electronically, Advanced Power Solutions’ invoice shall indicate the manner of delivery as “software delivered electronically to the customer” and identify locations where the software will be used if known. Invoices shall not include any Taxes for which Buyer has furnished a valid exemption certificate. If Advanced Power Solutions receives a refund of any Taxes attributable to Buyer, Advanced Power Solutions will promptly credit such amount to Buyer. If Advanced Power Solutions receives notice of any additional Taxes applicable to this Agreement, Advanced Power Solutions shall promptly notify Buyer.
7. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF REMEDIES.
a) Advanced Power Solutions makes no warranties or representations regarding the Goods sold. Advanced Power Solutions DISCLAIMS ANY WARRNTY RESPECTING THE MERCHANTABILITY OF THE GOODS SOLD TO BUYER OR THEIR FITNESS FOR ANY PARTICULAR PURPOSE OR USE. Advanced Power Solutions is an authorized distributor of the Original Component Manufacturer (“OCM”) goods. As such, Advanced Power Solutions agrees to transfer to Buyer those transferable warranties Advanced Power Solutions receives from the OCM for the goods sold to Buyer and is in accordance with the applicable OCM specifications. The warranties set forth herein shall not apply to any goods that: 1) have been subject to an accident, excessive stress, modification, or abnormal wear and tear; and, 2) that have not been kept in a controlled environment which reasonably limits damage resulting from heat, humidity, corrosion, contamination and/or electrostatic discharge for normal storage and prescribed maintenance. Value-added work performed by Advanced Power Solutions will conform to applicable Buyer’s specifications relating to such work.
b) Advanced Power Solutions’ liability arising out of any sale of goods to Buyer is expressly limited to either: 1) refund of the purchase price paid by the Buyer for such goods (without interest); or 2) repair and/ or replacement of such goods at Advanced Power Solutions’ election, and such remedies shall be exclusive and in lieu of all others. In no event shall Advanced Power Solutions be liable for indirect, special, incidental or consequential damages of any nature, including, but not limited to, loss of profit, promotional or manufacturing expenses, overhead, injury to reputation or loss of customers, personal injury or property damage. Buyer’s recovery from Advanced Power Solutions for any claim shall not exceed the purchase price paid by Buyer for the goods, irrespective of the nature of the claim, whether in warranty, contract or otherwise.
8. PATENT INFRINGEMENTS.
Advanced Power Solutions makes no representations that any goods sold to Buyer are free of the rightful claim of any third person by way of infringement, license or infringement of patent or trademark or any claim arising from the assertion of intellectual property rights of any kind, and disclaims any warranty against infringement with respect to any such goods. Buyer agrees to look solely to the OCM or licensor of the goods with respect to any claim of infringement. Furthermore, Buyer agrees to protect, defend, indemnify and hold harmless Advanced Power Solutions from all sums, costs, expenses and attorney fees which Advanced Power Solutions may incur or be obligated to pay as a result of any and all claims and demands, causes of action or judgments arising out of or relating to any use, modification, adaptation or enhancement of the goods purchased from Advanced Power Solutions.
Buyer shall hold harmless and indemnify Advanced Power Solutions, its respective directors, officers, employees, agents, successors and assigns to the full extent of any liability, loss, cost, claim, damage or expense actually incurred by the injured party, including, but not limited to, reasonable attorneys' fees for the defense of all liabilities, costs, claims, damages and expenses by reason of any actual property damage or personal injury that is caused by any misconduct or any negligent act or omission of the Buyer, its employees and agents. Advanced Power Solutions shall provide Buyer with prompt notice of any claim within the foregoing provision and shall give Buyer the full right to defend any such claim and shall cooperate fully in such defense.
Advanced Power Solutions shall maintain throughout the performance of this agreement or any related Purchase Order, general third party legal liability insurance, product/goods liability insurance, worker’s compensation and automobile insurance having limits consistent with industry standards or statutory requirements and determined by Advanced Power Solutions to be reasonable and necessary or as required by law. Advanced Power Solutions does not name Buyer or Buyer’s Customers as “Additional Insured” nor provide a "Waiver of Subrogation in favor of Buyer or Buyer’s Customer.
Buyer shall be solely responsible for the installation and operation of the goods covered hereby, including without limitation the obtaining of all permits, licenses or certificates required for the installation of such goods.
12. USE OF GOODS IN LIFE SUPPORT APPLICATIONS.
Goods sold by Advanced Power Solutions are not authorized to be used in life support equipment or for applications in which the failure or malfunction of the goods would create a situation in which personal injury or death is likely to occur. Any such use or sale of goods sold by Advanced Power Solutions is at the sole risk of Buyer, and Buyer agrees to indemnify and defend Advanced Power Solutions against and hold Advanced Power Solutions harmless from all damages, costs and expenses, including without limitation attorney fees and costs relating to any claim, demand, cause of action, lawsuit or threatened lawsuit, or judgment arising out of such use or sale.
13. TECHNICAL INFORMATION AND DATA.
Any technical information or data offered by Advanced Power Solutions in connection with the sale of goods is an accommodation to Buyer without charge and Buyer waives any claim against Advanced Power Solutions and releases Advanced Power Solutions from any and all liability arising from Buyer’s reliance upon such technical information and data. Without Advanced Power Solutions’ prior written consent, Buyer shall not transfer, duplicate or disclose to any third party any technical information or data offered by Advanced Power Solutions in conjunction with the sale of goods to Buyer. Any use made of Advanced Power Solutions’ classifications, whether it be ECCNs or any variation of Harmonized Tariff codes, is without recourse to Advanced Power Solutions and at the Buyer’s risk. Export classifications are subject to change. If Buyer exports or re-exports the goods, Buyer, as the exporter of record, is responsible for determining the correct classification of any item at the time of export. Any export classification by Advanced Power Solutions is for Advanced Power Solutions’ internal use only and shall not be construed as a representation or warranty regarding the proper export classification nor relied upon to make licensing determinations.
All computer software, if any, delivered by Advanced Power Solutions to Buyer is licensed pursuant to separate licensing agreement or other arrangements, from the owner of the software or other third party directly to Buyer. Buyer acknowledges receipt of a separate agreement pursuant to which software delivered to Buyer is licensed. Buyer acknowledges that Advanced Power Solutions is not a party to such license with respect to software supplied hereunder. Buyer agrees to look directly to the licensing party in connection with all maintenance, support, infringement, warranty and other claims relating to software delivered to Buyer hereunder.
In the event of any default by Buyer, Buyer shall pay all costs incurred by Advanced Power Solutions in enforcing these Terms and Conditions, including without limitation, Advanced Power Solutions’ actual costs of collecting any payments due Advanced Power Solutions including attorneys’ fees and costs. The waiver by Advanced Power Solutions of any breach hereof or default in any payment shall not be deemed to constitute a waiver of any other breach or default. In the event of default, Advanced Power Solutions shall have all remedies provided under the Uniform Commercial Code which shall be cumulative with one another and with any other remedies which Advanced Power Solutions may have at law, in equity, under any agreement of any type or, without limitation, otherwise. The exercise or failure to exercise any remedy shall not prelude the exercise of that remedy at another time or any other remedy at any time. No action, regardless of form, arising out of, or in any way connected with, the goods furnished or services rendered by Advanced Power Solutions, may be brought by Buyer more than one year after an alleged cause of action accrues.
16. INTEGRATION AND ASSIGNMENT.
This agreement sets forth the sole and entire agreement between Buyer and Advanced Power Solutions with regard to the subject matter hereof and supersedes any and all prior or contemporaneous oral or written agreements between them regarding the same. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any term used in this agreement. Acceptance or acquiescence in a course of performance rendered under this agreement shall not be relevant to determine the meaning of this agreement even though the accepting or acquiescing party had knowledge of the nature of the performance and opportunity for objection. No modification of this agreement whatsoever shall be enforceable unless reduced to writing and signed by both Advanced Power Solutions and Buyer. No affirmation, representation or warranty made by any agent, employee or representative of Advanced Power Solutions shall be enforceable against Advanced Power Solutions unless such affirmation, representation or warranty is reduced to writing, signed by Buyer and Advanced Power Solutions, and expressly incorporated into these Terms and Conditions. Any assignment of this agreement or any rights hereunder by Buyer shall be void without Advanced Power Solutions’ prior written consent.
17. BUYER’S TERMS AND CONDITIONS.
Advanced Power Solutions desires to provide its customers with prompt and efficient service. Accordingly, goods furnished and services rendered by Advanced Power Solutions are sold solely and exclusively on the Terms and Conditions stated herein. Any different, conflicting or additional terms or conditions of sale expressed in the Buyer purchase orders, invoice, confirmations or other buyer-generated documents (“Buyer Documents”) whether heretofore or hereafter submitted are expressly rejected by Advanced Power Solutions, and all different, conflicting or additional terms or conditions expressed in any Buyer Documents are hereby deemed to be material alterations of these Terms and Conditions and notice of objection to and rejection of such terms is hereby given. Advanced Power Solutions’ performance of any contract of sale with Buyer is expressly conditional on Buyer’s acceptance of these Terms and Conditions of Sale, unless otherwise specifically agreed in writing by Advanced Power Solutions. In the absence of such agreement, commencement of performance and or delivery of goods shall be for Buyer’s convenience only and shall not be deemed or construed to be acceptance of terms and conditions expressed in any Buyer Documents. Buyer’s acceptance of goods or services from Advanced Power Solutions shall be conclusively deemed acceptance of these Terms and Conditions of Sale.
Certain goods and related technology and documentation sold by Advanced Power Solutions are subject to export control laws, regulations and orders of the United States, the European Union, and/or other countries ("Export Laws"). Buyer shall comply with such Export Laws and obtain any licenses, permits and authorizations required to transfer, sell, export, re export or import all goods and related technology and documentation in full compliance with such Export Laws. Buyer will not export or re-export the goods and related technology and documentation to any country or entity under sanction or embargoes administered by the United States, U.S. Department of Treasury, U.S. Department of Commerce or U.S. Department of State. Additionally, and in light of the sanctions imposed by the US government on various Venezuelan entities, Buyer agrees that it will not export or re-export the Goods and related technology to Venezuela or any other similarly sanctioned or embargoed country. Buyer will not use the goods in relation to nuclear, biological or chemical weapons or missile systems capable of delivering same, or in the development of any weapons of mass destruction.
19. SPARES FOR AFTER AGREEMENT SUPPORT.
Accepting this Order does not constitute a commitment upon Advanced Power Solutions to provide goods for the life of the Buyer’s products or any integrated subsystem.
20. SECURITY INTEREST.
Advanced Power Solutions waives all and does not grant to Buyer any security interest ("Security Interest") in the materials, components, contracts, Intellectual Property, and all other property and any proceeds thereof that may be acquired or allocated by Advanced Power Solutions for use in the acquisition, assembly, and manufacture of the Goods, in the completed Goods ("Secured Property") under any Purchase Order of Buyer.
21. COMPLIANCE WITH LAW.
Buyer represents that in the performance of an Agreement which are relevant to its business operations of the country of order placement, Buyer shall at all times comply with all applicable governmental laws, statutes, ordinances, rules, regulations, orders, and other requirements, including, without limitation, such governmental requirements applicable to environmental protection, health, safety, wages, hours, equal employment opportunity, nondiscrimination, anti-corruption and working conditions.
22. GOVERNMENT PRIME CONTRACTS.
If this Order indicates that it is placed under a government contract, all Federal Laws and regulations relating to such contract shall apply and be in effect, including such portions of the Federal Acquisition Regulations (“FAR”) or applicable supplement as may be relevant to this Order. If this Order is under a covered government contract, Advanced Power Solutions certifies, to the best of its knowledge and belief, that neither Advanced Power Solutions nor any of its principals are debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any federal agency. Certain flow down FAR clauses or applicable supplements in an Order may not be applicable to specific Orders due to the dollar thresholds or other requirements as stated in the prescribed clause of the FAR or applicable supplemental flow downs. Clauses that are not applicable shall not be removed from an Order reference, and will be considered by all Parties to be without force and effect. For certain clauses, Buyer must provide applicable language describing the circumstances under which the clauses apply to the Order.
This agreement and performance by the parties hereunder shall be construed in accordance with the internal laws (excluding the laws relating to conflicts) of the State of Texas including the provisions of the Texas Uniform Commercial Code. The parties expressly exclude the applicability of the United Nations Convention on Contracts for the International Sale of Goods, 1980, or any successor thereto to this Agreement. All agreements, covenants, conditions and provisions contained herein shall apply to and bind the assignees and successors in interest of Buyer. If any provisions or portion of this agreement is held to be invalid, illegal, unconscionable or unenforceable, the other provisions and portions hereof shall not be affected. The captions used herein are for the convenience of the parties only and shall not affect the instruction or interpretation hereof. Buyer warrants and represents that all goods purchased from Advanced Power Solutions shall be used exclusively for business or commercial purposes and not for consumer, i.e., Buyer’s personal, family or household, purposes.
24. AFFIRMATIVE ACTION.
As applicable, Advanced Power Solutions shall abide by the requirements of 41 CFR 60–1.4(a), 60–300.5(a) and 60–741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status. YOU ARE HEREBY NOTIFIED that acceptance of this Agreement constitutes (1) your agreement to be bound by the requirements, regulations, and provisions contained within this paragraph, to the extent required by law, and (2) your consent to provide any required certification of same to Advanced Power Solutions, at Advanced Power Solutions’ request.