Copyright © 1998 - 2005 FleetLinc LLC and CES Wireless
Technologies Corp. Inc. thereafter referred to as CES. All
Rights Reserved.
All specifications, prices and
product descriptions can be changed without notice. CES reserves
the right to discontinue products or programs without notice.
CES reserves the right to change products, specifications, and
installation data at any time, without notice. Any Information
shown on this publication is carefully prepared and offered in
good faith as a guide in the installation, operation, use and
servicing of our products. Installers must insure that the final
installation operates properly, within relevant regulatory
requirements of the country you are using the product in. We
accept no responsibility for incorrect installation or failure
to meet any regulatory requirements of your particular country.
TERMS AND CONDITIONS OF SALE
(1) These Terms and Conditions of Sale shall apply to all goods
sold and services provided by CES Wireless Technologies Corp., a
Maryland corporation (“the Company”) and to all quotations,
purchase orders, invoices or other documentation concerning such
goods or services unless specifically agreed by the Company by
instrument in writing signed by the President of the Company.
Any terms, conditions, or provisions on any quotation, order
form, or other document supplied by the Purchaser, shall be
totally disregarded and void and of no effect, and in particular
the Company shall not be deemed to amend, vary or in any way
affect these Terms and Conditions. The Company will only supply
goods and services upon the terms and conditions contained
herein.
(2) The Purchaser shall be deemed to have accepted these Terms
and Conditions and accordingly the contract between the Company
and the Purchaser shall be deemed complete and binding in any of
the following circumstances:
(a) If the Purchaser accepts or requests delivery of the goods
or services verbally or in writing, or
(b) If the Purchaser forwards to the Company a purchaser order
form, or other document or letter concerning the goods or
services (notwithstanding that such purchase order may contain
Terms and Conditions at variance with those contained herein, as
such Terms and Conditions on the purchase order shall be void
and of no effect by virtue of Paragraph 1 hereof), or
(c) If the Purchaser by its actions or otherwise communicates to
the Company its acceptance of these Terms and Conditions. Given
that the Terms and Conditions herein contained apply generally
and exclusively to the supply of the Company’s goods and
services, it shall not be necessary to include these Terms and
Conditions on any of the Company’s
orders, invoices or other documentation, and such Terms and
Conditions shall be deemed included therein.
(3) The terms of trade and price for the Company’s goods and
services shall be as specified on any invoice or other relevant
documentation of the Company and unless otherwise specified the
following shall apply:
(a) The price shall be exclusive of all sales and other taxes,
stamp duty, delivery costs and insurance. These additional items
shall be added by the Company to the price borne by the
Purchaser. All goods are shipped F.O.B. the shipping point
unless otherwise agreed in writing. Suggested resale prices
shown in the price lists are provided as suggestions only
and do not necessarily reflect the prices of products being sold
in any area. Purchaser should determine prices at which products
are sold. Rebates or refund allowances covering stock on hand
because of a decrease in suggested resale price will not be
given. Unauthorized deductions will not be honored.
(b) The Company reserves the right after placement of an
unconditional order to vary the price to take account of any
increase in the cost to the Company of any components or raw
materials or any exchange rate variation provided such increase
shall only be such as is necessary to compensate the Company for
the increased cost to it of such items. Any
increase in purchase price shall not invalidate any contract
between the Company and the Purchaser or enable the Purchaser to
avoid the contract. Nothing herein shall be deemed to limit the
right of the Company to vary prices from time to time in
relation to any new orders. Orders are taken subject to product
availability and acceptance by Company. If an item is
temporarily unavailable, it will be placed on back order. The
Company reserves the right to cancel orders at any time.
(c) The Purchaser shall pay the whole of the purchase price in
the manner described in sub-paragraph (e) below as follows:
(i) for purchasers who have been designated as approved account
customers by the Company after acceptance of the completed
credit application form, payment must be made within thirty (30)
days of the date of the Company’s Invoice;
(ii) for all other purchases payment is to be made in cash or
equivalent.
(d) If at any time in the opinion of the Company, the financial
condition or circumstances of the Purchaser are such that the
Company believes it is appropriate to vary the existing terms of
trade, production or delivery, the Company may (without being
liable for any loss or damage thereby suffered by the Purchaser)
amend such terms of trade, production or delivery in such a
manner as it considers appropriate by written notice effective
immediately.
(e) The Company shall be paid in U.S. dollars in cash, check,
bank draft, irrevocable letter of credit, telegraphic transfer,
any agreed combination thereof, or in such other manner or
currency as is approved by the Company in writing. International
orders will be accepted when accompanied by a irrevocable letter
of credit confirmed on a U.S. bank or by bank wire transfer.
There will be a U.S. $35.00 charge for receiving wire transfers
that must be paid by the purchaser for all orders less than U.S.
$5,000.00.
(f) The Purchaser shall be responsible for all costs of insuring
any goods in transit to the Purchaser and any transportation,
freight or delivery costs, which costs shall be prepaid
and charged on the invoice.
(g) Any delivery date given by the Company is an estimate only.
The Company shall not be responsible in any manner whatsoever
for any failure to deliver the goods or services by the delivery
date, whether due to circumstances beyond its control or
otherwise. In the event that the Company has failed to deliver
the goods or services by the delivery date and
such failure is due to circumstances within the Company’s
control, the Purchaser may give the Company thirty (30) days
written notice of a new required delivery date. If the Company
fails for reasons within its control (but not otherwise) to
deliver the goods or services by such new delivery date, the
Purchaser may cancel the particular order, but the Purchaser
shall have no other claim whatsoever against the Company whether
for loss or damage or otherwise as a result of the Company’s
failure to achieve the new delivery date.
(h) Should the Purchaser be a corporation or a partnership, the
Company may require the written personal guarantees of the
directors, shareholders, or partners.
(i) Defective Product
(i) The Purchaser shall promptly provide written details to the
Company on becoming aware of a defect in the goods during any
applicable warranty period, and shall use its best efforts to
provide the Company with all necessary access, facilities and
information to enable the Company to ascertain or verify the
nature and cause of the defect.
(ii) If goods or parts are found not to be defective or if any
defect is attributable to the Purchaser’s design or materials or
operation of the goods or parts, the Company may levy a testing
charge (together with sales tax or other duties or taxes if
appropriate) and where relevant will return the goods to the
Purchaser at the Purchaser’s expense, and shall be entitled to
payment in advance of the whole testing and transport charge
before such return.
(iii) In respect of goods not manufactured by the Company the
liability of the Company shall be entirely discharged by the
assignment to the Purchaser so far as is legally possible of
such warranty rights as have been granted by the manufacturer of
such goods. Where such an assignment cannot be effected, the
Company’s liability shall be limited to an amount (if any) equal
to the net amount (after deduction of costs) recovered by the
Company in respect of the goods from the manufacturer.
(iv) The Company accepts no liability:
A. for defects caused by Purchaser’s design or installation of
the goods;
B. if the goods have been modified or repaired otherwise than as
authorized in writing by the Company;
C. if the goods have not been operated, stored, or maintained as
recommended by the Company;
D if the defect arises because of the fitting of the goods to
unsuitable equipment;
E. where the Purchaser has failed to observe the terms of
payment for the goods or any other obligation imposed by these
conditions.
(j) All shipments are F.O.B. shipping point and risk of loss
passes to the Purchaser upon acceptance of the merchandise, in
good order, by the carrier. Company assumes no risk of loss
and/or damage in transit. For the Purchaser’s protection,
visible damage as well as shortages should be noted on the
freight bill at the time of delivery. If concealed damage is
found the Purchaser should notify the carrier immediately. Due
to federal regulations, the shipper is responsible for filing
claims on all damaged or lost merchandise even though the terms
are F.O.B. shipping point. In order that the Purchaser may
recover for any loss on shipments, Company must receive written
notice of the loss within thirty (30) days. Such
notification must include:
(i) Invoice number and date.
(ii) Itemized list of lost and/or damaged merchandise by model
number.
(iii) Inspection report from postal service (damaged parcel post
shipments only).
(k) All returns must be authorized in writing by Company and
shipped freight prepaid. Collect shipments will not be accepted.
All returns are subject to a 20% restocking charge. If Purchaser
fails to notify CES within ten (10) days after receipt of goods
of any defect, shortage, or other failure to conform to the
purchase order, the goods shall be considered accepted by the
Purchaser as delivered. No refunds or exchanges are authorized
after thirty (30) days from shipment. Purchaser will be invoiced
for any missing, damaged or shop worn equipment or accessories.
(4) (a) The goods shall remain the property of the Company as
the legal and equitable owner and no property in or title to the
goods shall pass to the Purchaser until their full price has
been duly paid to the Company. Pending legal and beneficial
ownership of the goods passing to the Purchaser, the Purchaser
shall
(i) keep the goods in good condition;
(ii) keep the goods fully insured in their full replacement
value against all risks prudently insured against;
(iii) not encumber the goods in any way; and (iv) hold and keep
the goods separately from other property in the possession of
the Purchaser and in a manner which
enables the goods to be easily identifiable as goods supplied by
the Company.
(b) Failure to pay the price for the goods when due shall,
without prejudice to any other remedies the Company may have,
entitle the Company to repossess the goods or so much thereof as
the Company may determine from any premises where they may be.
For the purpose of repossessing the goods or any part thereof
the Purchaser hereby grants an irrevocable
license to the Company, its employees or agents, to enter upon
such premises as the Company reasonably suspects the goods may
be located, using such reasonable force as is necessary and
without being liable for any damage thereby caused and the
Purchaser shall pay to the Company the cost of removal and
transport of the goods or any part thereof and
the Purchaser shall indemnify the Company from and against any
liability to any third party in respect of any such damage and
from, and against, all actions, proceedings, claims, demands,
costs, damages and expenses howsoever arising.
(c) The Purchaser may in the ordinary course of its business
sell and deliver the goods in which the title remains with the
Company to a third party as the Company’s agent in a fiduciary
capacity and for the account of the Company. The Purchaser shall
upon request assign to the Company the legal title of any right
against any third party arising out of such
sale. The Purchaser shall be entitled to receive from the
Company by way of commission, the excess of the proceeds of sale
over the amounts due to the Company from the Purchaser.
(d) Notwithstanding the provisions of this paragraph (4), the
Company shall be entitled to bring an action against the
Purchaser for the price of the goods in the event of nonpayment
by the Purchaser by the due date as if the title in the goods
had already passed to the Purchaser and/or shall have the right
by notice in writing to the Purchaser at any time after the
agreed delivery date to pass the title in goods to the Purchaser
as from the date of such notice.
(5) Should the Company provide any software to the Purchaser,
the Purchaser shall only be licensed, subject to compliance with
any software license agreement required to be executed by the
Purchaser, to use non-exclusively the software. The software and
all copyright in any manuals, drawings, operational or technical
specifications, disks, tapes and writings shall at all times
remain the property of the Company and the Company reserves the
right to use the software and the right to sell, license or
otherwise deal with it to other parties. The Purchaser shall not
be entitled to modify, improve, or otherwise change the
software, except with the Company’s prior written consent.
(6) The Purchaser shall ensure compliance with the terms hereof
by all its principals, employees, agents and representatives and
shall be legally responsible for any breaches hereof by any such
principals, employees, agents or representatives and any damages
flowing therefrom.
(7) (a) The Company will not be responsible for any promises,
conditions, warranties or representations made by any of its
representatives, employees or agents unless the same are
expressly set out herein or given by the Company in writing.
(b) The Purchaser acknowledges that the goods provided may be
integrated with other components to realize the final usable
product. Further, the Purchaser acknowledges that the Company is
not liable for the design, development, integration or
implementation of the final application and that the inability
of the goods to function in a particular application
may not be a defect in design, materials or workmanship but lack
of suitability for a particular application. The Purchaser will
therefore ensure, through purchasing sample product that the
goods are suitable for the application and prove the design
concept prior to purchasing any quantity of the goods.
(c) The operation of the goods is contingent upon the operation
of other non-CES Wireless manufactured components and services
such as the radio transceiver equipment, wireless modems, GPS
satellite services and/or wireless services. The Company is not
responsible for such components and services or any changes
implemented by the radio manufacturer or service provider during
the lifetime of the goods.
(8) (a) The Purchaser acknowledges that the goods and services
supplied by the Company are not of a kind ordinarily acquired
for personal, domestic or household use or consumption. While
the Company warrants that the goods will be free from defects in
material and workmanship under normal use and service for a
period of twelve months (12) for microphones, ninety days (90)
days for software and twenty four (24) months for all other
products from the date of shipment, the Purchaser further
acknowledges that the Company will not be responsible for any
direct or indirect loss, expense or cost whatsoever, or damage,
or consequential loss or damage suffered by the Purchaser as a
result of the goods or services supplied by the Company. The
Company’s only liability, which shall only be for direct loss
attributable to the gross negligence of the Company or its
servants, or agents, or the failure of a good manufactured by
the Company within the warranty period, shall only be to remedy
or repair the goods or re-perform the services at the Company’s
premises and then to either replace the goods or supply
equivalent goods or services. The Company shall have no
liability whatsoever for any matters beyond its direct control.
While not in
derogation of the generality and breadth of the foregoing, the
Purchaser specifically acknowledges that the Company shall have
no liability in any manner whatsoever for any costs associated
with product recall.
(9) (a) The Purchaser acknowledges that the Company will not be
liable for any indirect or consequential loss or damage suffered
by the Purchaser or any person claiming through the Purchaser
howsoever caused. Without limiting the generality of the
foregoing, the Company will not be liable for:
(i) Any such loss or damage resulting from any defects in
design, materials or workmanship or any malfunction in the goods
or from the application or use to which the goods are put by the
Purchaser, or
(ii) Any personal injury or loss of life suffered as a result of
the use or malfunction of the goods.
(b) The Purchaser will indemnify and keep indemnified the
Company against any and all liabilities, claims and costs
incurred by or made against the Company in respect of any loss
or damage or the type referred to in Clause 9B(a).
(c) THE COMPANY HEREBY PUTS THE PURCHASER ON NOTICE THAT IN THE
EVENT THAT THE GOODS ARE, OR ARE INTENDED TO BE, USED OR APPLIED
IN CIRCUMSTANCES WHERE ANY MALFUNCTION IN THE GOODS, OR ANY
COMPONENT THEREOF, COULD RESULT IN PERSONAL INJURY, LOSS OF LIFE
OR DAMAGE TO PROPERTY, THE ONUS WILL BE ON THE PURCHASER TO
ENSURE THAT ADEQUATE PRECAUTIONS OR BACKUP SYSTEMS ARE INSTALLED
TO MINIMIZE THE POTENTIAL FOR SUCH INJURY, LOSS OR DAMAGE.
(10) THESE TERMS AND CONDITIONS OF SALE CONSTITUTE THE SOLE
TERMS AND CONDITIONS GOVERNING THE RELATIONSHIP BETWEEN THE
PARTIES TO THE TOTAL EXCLUSION OF ALL OTHERS EXCEPT FOR ANY
TERMS AND CONDITIONS AGREED TO BY THE PARTIES IN WRITING. TO THE
MAXIMUM EXTENT PERMITTED BY LAW, ANY AND ALL IMPLIED TERMS,
CONDITIONS OR WARRANTIES HEREIN, OR IN THE BUSINESS RELATIONSHIP
BETWEEN THE
PURCHASER AND THE COMPANY, SHALL BE EXPRESSLY NEGATIVED AND
EXCLUDED INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
(11) In the event of any provision of this agreement or part
thereof being in its present form void or unenforceable, such
provisions shall be read down but only as far as is required by
law to render it enforceable. In the event of any such provision
or part thereof being incapable of being so read down, such
provision shall be severed from this agreement as if it had
never been
included, and the balance of these Terms and Conditions shall
remain in full force and effect and shall not be tainted by the
severance of the offending provision or part thereof.
(12) Should the Purchaser default in the payment of any part of
the price by the due date, without prejudice to any other rights
the Company may have:
(a) Interest at the maximum rate allowed by law shall accrue
automatically upon the amount outstanding and shall be paid by
the Purchaser to the Company.
(b) Any other amounts outstanding between the Purchaser and the
Company shall become immediately due and payable and shall be
paid by the Purchaser to the Company.
(c) The Company may (without being liable for any loss or damage
thereby sustained by the Purchaser) suspend production and/or
delivery of any and all goods and services to the Purchaser
until receipt in full of all moneys outstanding.
(d) The Company may retake possession of any goods supplied by
the Company to the Purchaser, which have remained the property
of the Company by virtue of Paragraph 4 hereof.
(e) The Purchaser shall pay to the Company all reasonable costs
and expenses of the default including reasonable attorney’s fees
(wither suit be brought or not) and other expenses incurred by
the Company in connection with enforcing Company’s rights
hereunder.
(13) Time shall be the essence of the contract in respect of
which Terms and Conditions form a part.
(14) These Terms and Conditions and all matters concerning the
business relationship between the Purchaser and the Company
shall be governed by the laws of the State of Florida, U.S.A.
and venue of any proceeding brought hereunder shall lie in
Orange County, Florida, U.S.A.
(15) Any notices concerning these Terms and Conditions or the
business relationship between the Purchaser and the Company
shall be deemed to be properly served two days after being
dispatched if sent by ordinary mail to the address of the party
as specified in the documentation and correspondence between the
parties or such other address as shall be notified in writing or
instantaneously in the case of facsimile or telex transmissions.
(16) In these Terms and Conditions and in the contractual
relationship between the parties, the singular shall mean the
plural and vice versa, and the masculine gender shall include
the
feminine and neuter genders.
(17) These Terms and Conditions and the contract between the
parties are personal to the Purchaser and accordingly the
Purchaser shall not assign Purchaser’s rights or obligations
pursuant to these Terms and Conditions without the written
consent of the Company, which may be withheld at the sole
discretion of the Company.
(18) In the event of the Company extending credit to the
Purchaser, the Purchaser agrees to execute the Company’s
standard credit application form, and hereby authorizes the
Company to make such inquiries and/or searches as the Company
shall deem appropriate to investigate the Purchaser’s financial
and business standing and reputation.
(19) (a) Neither party shall be liable for breach of contract
other than payment, if and to the extent that fulfillment of a
Term or Condition hereof has been prevented, hindered or delayed
by force majeure as defined in condition 19(b) below, and in
such event that time for fulfillment of such a term shall be
extended for such period as is reasonable in all the
circumstances.
(b) The expression “force majeure” shall mean any event or
circumstance beyond the immediate control of either party,
including without prejudice to the generality of the foregoing,
strikes, lock-outs, trade disputes, accident to plant or
machinery, shortage of any material, riots, civil commotion, war
- national or international, emergency, destruction or damage
due to natural forces, fire, flood, explosion, and compliance
with orders or requests of any national or local authority.
(20) Publications are distributed
internationally and may contain references to CES products,
services, and programs that have not been announced in your
country, or are not suitable for operation in such country.
These references do not imply that CES intends to announce such
products, services or programs in your country, or warranty the
use of product in such country.
-end-.
