BINDING TERMS AND CONDITIONS OF SALE
For questions or inquiries, please contact CDM Inc.
The sale of products and services (“Products”) by CDM Inc. are subject to these terms and conditions (“Agreement”) regardless of other or additional terms or conditions that conflict with or contradict this Agreement in any purchase order, document, or other communication (“Order”). Preprinted terms and conditions on any document of customer (“Customer”) (for example: Orders or confirmations) and/or CDM Inc.’ failure to object to conflicting or additional terms will not change or add to the terms of this Agreement.
1. ORDERS. All Orders are subject to acceptance by CDM Inc.. Orders for special, customized, and value-added Products and Products specifically identified by CDM Inc. as non-standard are obtained and/or manufactured specifically for the Buyer. These Products are designated as “NC/NR”, and may not be cancelled, rescheduled, changed or returned. Orders for standard product may only be changed with CDM Inc.’ consent. $250 minimum PO value, $75 minimum value per line.
1a. PRODUCT RETURN. Customer may return Products to CDM Inc. only with a return material authorization (“RMA”) number issued by CDM Inc.. Customer must notify CDM Inc. in writing of any damage to the outer packaging or other desire to return Products within 3 days after receipt of the shipment; otherwise, Customer is deemed to have accepted the Products. RMAs will be issued only for defects created solely by CDM Inc. or the original manufacturer, and only if Customer satisfies the notice requirement. RMAs will not be granted for damage, shortage, or other discrepancy created by Customer, the carrier or freight provider, or any other third party. Product return pursuant to a warranty requires written notice from Customer to CDM Inc. within the warranty period detailing the Product defect. Customer must return the Products to CDM Inc. freight prepaid in original manufacturer’s shipping cartons or equivalent, along with acceptable proof of purchase, within the warranty period and as specified in the RMA. At CDM Inc.’ discretion, CDM Inc. will return all Products not eligible for return to Customer, freight collect, or hold Product for Customer’s account at Customer’s expense.
2. PRICES. Prices are subject to change at any time. Prices are for Products only and do not include taxes, shipping charges, freight, duties, and other charges or fees, such as fees for special packaging and labeling of the Products, permits, certificates, customs declarations and registration (collectively, “Additional Fees”). Customer is responsible for any Additional Fees. Prices stated are in US Dollars.
3. TERMS OF PAYMENT. Credit cards accepted include major credit cards, including MasterCard, VISA and American Express. Credit Card billing information must be verified on new customers prior to shipment of order. Payment via net 30 days, or other terms payment arrangements, (e.g. 1% 10/NET 30 “discounted terms”), may be made upon approval from CDM Inc., and in compliance with these terms. For customers with discounted terms arrangements, credit card payments are accepted with forfeiture of the negotiated discount. All customers paying by credit card, regardless of terms arrangement, must submit payment no later than 10 business days from the date of invoice, or will be subject to a 3% surcharge.
Customer agrees to pay the entire net amount of each invoice from CDM Inc. pursuant to the terms of each such invoice, without offset or deduction. Discounts may only be applied if previously approved by CDM Inc. in writing as having discounted terms, Customer’s credit is in good standing and Customer is within compliance of all other terms and conditions. Orders are subject to credit approval by CDM Inc., which may in its sole discretion at any time change the terms of Customer’s credit, require payment in cash, bank wire transfer/EFT/ACH or by official bank check, and/or require payment of any or all amounts due or to become due for Customer’s order before shipment of any or all of the Products. If CDM Inc. reasonably believes that the Customer’s ability to make payments may be impaired or if Customer fails to pay any invoice when due, CDM Inc. may suspend delivery of any order or any remaining balance thereof, until such payment is made or cancel any order or any remaining balance thereof. Customer will remain liable to pay for any Products already shipped and all Non-Standard Products ordered by Customer. Customer agrees to submit such financial information as CDM Inc. may require for determination of credit terms and/or continuation of credit terms. Checks are accepted subject to collection and the date of collection will be deemed the date of payment. Any check received from Customer may be applied by CDM Inc. against any obligation owing by Customer to CDM Inc. under this or any other contract, regardless of any statement appearing on or referring to such check, without discharging Customer’s liability for any additional amounts owing by Customer to CDM Inc.. The acceptance by CDM Inc. of such check will not constitute a waiver of CDM Inc. right to pursue the collection of any remaining balance. Invoices not paid when due will bear interest to date of payment at the annual rate of eighteen (18%) percent or such lower rate as may be the maximum permitted by law. If Customer fails to make payment when due, CDM Inc. may pursue any legal or equitable remedies, in which event CDM Inc. will be entitled to reimbursement of costs for collection and reasonable attorneys’ fees. There is a $30 (USD) service charge on all returned checks.
4. DELIVERY AND TITLE. All shipments by CDM Inc. are FOB point of shipment from CDM Inc.’ facility and the amount of all transportation charges will be paid to CDM Inc. by the Customer in addition to the purchase price of the Products. Subject to CDM Inc.’ right of stoppage in transit, delivery of the Products to the carrier will constitute delivery to Customer and title and risk of loss will pass to Customer. CDM Inc. will make reasonable efforts to initiate shipment and schedule delivery as close as possible to Customer’s requested delivery date(s). Customer acknowledges that delivery dates provided by CDM Inc. are estimates only and that CDM Inc. will not be liable for failure to deliver on such dates. Selection of the carrier and delivery route will be made by CDM Inc. unless specifically designated by Customer. CDM Inc. reserves the right to make deliveries in installments. Delay in delivery of one installment will not entitle Customer to cancel any other installment(s). Delivery of any installment of Products within thirty (30) days after the date requested will constitute a timely delivery. Delivery of a quantity that varies from the quantity specified shall not relieve Customer of the obligation to accept delivery and pay for the Products delivered.
5. CDM ELECTRONICS’ LIMITED WARRANTY. CDM Inc. will pass through to Customer any transferable Product warranties, indemnities, and remedies provided to CDM Inc. by the manufacturer, including any warranties and indemnities for intellectual property infringement. If required by law, CDM Inc. warrants that at the time of delivery, the Products shall have the specifications stated by the manufacturer in its published data sheet for the Products for 12 months from delivery of Products. CDM Inc. warrants that for a period of 90 days after delivery of the Products to Customer, value-added work performed by CDM Inc. on Products will conform to Customer’s specifications that are in writing and accepted by CDM Inc., and Customer shall be deemed the manufacturer of such value-added Products. To the extent permitted by law, CDM Inc. makes no other warranty, express or implied, such as warranty of merchantability, fitness for purpose or non-infringement. Customer’s sole remedies for breach of CDM Inc.’ warranty are, at CDM Inc.’ choice: (i) repair the Products; (ii) replace the Products at no cost to Customer; or (iii) refund Customer the purchase price of the Products.
6. LIMITATION OF LIABILITY. To the extent permitted by law, neither CDM Inc. nor its employees or agents are liable for and customer is not entitled to any indirect, special, incidental or consequential damages; for example, loss of profits or revenue, loss of data, loss of use, rework, manufacturing expense, injury to reputation, or loss of customers. To the extent permitted by applicable law, Customer’s recovery from CDM Inc. for any direct damages will not exceed the price of the Product at issue. To the extent the preceding limitation of liability is deemed invalid under applicable law, CDM Inc.’ total liability in any event will not exceed USD 5,000 or the equivalent thereof. Customer will indemnify, defend and hold CDM Inc. harmless from any claims based on; (i) CDM Inc.’ compliance with customer’s designs, specifications, or instructions, (ii) modification of any Product by anyone other than CDM Inc., or (iii) use of Products in combination with other products or in violation of clause 8 below.
7. FORCE MAJEURE. CDM Inc. is not liable for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control, (for example: acts of nature, acts or omissions of the Customer, operational disruptions, man-made or natural disasters, epidemic medical crises, materials shortages, strikes, criminal acts, delays in delivery or transportation, or inability to obtain labor or materials through its regular sources).
8. USE OF PRODUCTS. Customer shall comply with the manufacturer’s or supplier’s Product specifications. Products are not authorized for use in critical safety or other applications where a failure may reasonably be expected to result in personal injury, loss of life, or serious property damage. If Customer uses or sells the Products for use in any such applications or fails to comply with the manufacturer’s Product specifications, Customer acknowledges that such use, sale, or non-compliance is at Customer’s sole risk.
9. EXPORT/IMPORT. CDM Inc. is committed to compliance with all U.S. Export Regulations and Laws. CDM Inc. will not sell or ship to countries embargoed by the U.S. Treasury Office of Foreign Asset Control (OFAC). CDM Inc. will not sell or ship to individuals or organizations identified by the U.S. Treasury as Specially Designated Nationals and Blocked Persons. CDM Inc. will not sell or ship products prohibited under Export Administration Regulations to individuals or organizations identified by the U.S. Department of Commerce, Bureau of Industry and Security (BIS). CDM Inc. will not seek export licenses pursuant to Export Administration Regulations. CDM Inc. participates in BIS Export Enforcement and OFAC transaction reporting. Furthermore, CDM Inc. is committed to compliance with US Department of State’s Directorate of Defense Trade Controls, (DDTC). The sale, resale or other disposition of Products, and any related technology or documentation, are subject to the export control laws, regulations and orders of the United States and may be subject to the export and/or import control laws and regulations of other countries. Customer agrees to comply with all such laws, regulations and orders. Customer further acknowledges that it shall not directly or indirectly export any Products to any country to which such export or transmission is restricted or prohibited. Customer acknowledges its responsibility to obtain any license to export, re-export or import as may be required.
10. PRODUCT INFORMATION. Product information (for example, statements or advice (technical or otherwise) advertisement content, and information related to a Product’s specifications, features, export/import control classifications, uses or conformance with legal or other requirements) is provided by CDM Inc. on an “AS IS” basis and does not form a part of the properties of the Product. CDM Inc. makes no representation as to the accuracy or completeness of the Product information, and DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND LIABILITIES UNDER ANY THEORY WITH RESPECT TO THE PRODUCT INFORMATION. CDM Inc. recommends Customer validate any Product Information before using or acting on such information. All Product information is subject to change without notice. CDM Inc. is not responsible for typographical or other errors or omissions in Product information.
11. GENERAL.
a. This Agreement shall be governed, construed, and enforced in accordance with the laws of the country where the CDM Inc. entity that accepted Customer’s Order (“Governing Country”) is located. The courts of the Governing Country shall have jurisdiction and venue over all controversies arising out of, or relating to, this Agreement. If the Governing Country is the United States of America, the laws and courts of the State of New Jersey will apply without reference to New Jersey’s conflict of laws principles. The United Nations Convention for the International Sale of Goods shall not apply.
b. Customer may not assign this Agreement without the prior written consent of CDM Inc., and CDM Inc.’ affiliates may perform CDM Inc.’s obligations under this Agreement. This Agreement is binding on successors and assigns.
c. This Agreement can only be modified in writing signed by authorized representatives of both CDM Inc. and Customer.
d. CDM Inc. and Customer are independent contractors and agree that this Agreement does not establish a joint venture, agency relationship, or partnership.
e. CDM Inc.’ failure to object to any document, communication, or act of Customer will not be deemed a waiver of any of these terms and conditions.
f. The unenforceability of any of these terms or conditions will not affect the remainder of the terms or conditions.
g. Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses, and Customer will comply with such rights.
h. Customer and CDM Inc. will comply with applicable laws and regulations