Title to the Products of ESL Power Systems, Inc. (ESL) sold to Customer shall remain with ESL until payment is made in full by Customer and received by ESL. Such reservation of title is for the purpose of securing the purchase price and shall not relieve Customer of the duty to inspect the Products upon receipt, to notify ESL of any deficiencies or defects, and to exercise due care in the use, installation, operation, and maintenance of the Products when on the premises of Customer or under the control of Customer. Notwithstanding any reservation of title by ESL, risk of loss shall pass to Customer at the time of shipment. All Products are non-cancelable, non-refundable and non-returnable unless noted otherwise on ESL’s Quotation.
SHIPMENT AND DELIVERY
All orders will be shipped F.O.B. Corona, CA unless noted otherwise on ESL’s Quotation. All destination, shipping and other charges shall be paid by Customer in accordance with ESL’s then current shipping and billing practices. Delivery dates given in the acceptance of any order are approximate. ESL shall not be liable for delays in delivery or in performance due to causes beyond its reasonable control including, but not limited to, acts of God, acts of Customer, acts of civil or military authority, fires, strikes or other labor disturbances, war, riot or delays in transportation. In the event of such delay, the date of delivery or performance shall be extended for a period equal to the time lost by reason of the delay.
Prices in any ESL publication are subject to change without prior notification. All written quotations are valid for thirty (30) days from the date of quotation unless noted otherwise on ESL’s Quotation. Customer shall pay all sales, use, excise or similar taxes whenever ESL must itself pay and/or collect such tax from Customer arising out of the sale.
Customer agrees to make payment within thirty (30) days of the date of invoice from ESL. Customer agrees to pay a late payment charge of one and one-half percent (1 ½%) per month, or the maximum late payment charge permitted by applicable law, whichever is less, on any unpaid amount for each calendar month (or fraction thereof) that such payment is delinquent and not received by ESL. In the event of referral to an attorney and/or collection agency for collection, reasonable attorney’s fees and costs for collection of the overdue amount shall be paid by Customer.
Should Customer fail to make any payment when due, or fail to perform any other of Customer’s obligation hereunder, or should Customer be or become insolvent or be a party to any bankruptcy or receivership proceeding prior to full payment of all amounts payable hereunder, ESL may: (a) with or without demand or notice to Customer declare the entire amount unpaid immediately due and payable; (b) enter upon the premises where the Products may be found and remove the Products (Customer shall assemble the Products and make the Products available to ESL at a place reasonably convenient to both parties and shall permit and assist ESL in effecting the retaking and removal of the Products); and (c) sell any or all of the Products as permitted under applicable law, applying the proceeds of the sale to payment of the expenses of retaking, repairing and selling the Products, reasonable attorney fees and to the satisfaction of all indebtedness then due and unpaid. Any surplus shall be paid to Customer and any deficiency shall be immediately paid to ESL by Customer. The remedies provided herein shall be cumulative and in addition to all other remedies provided by law or equity or under the Uniform Commercial Code.
ESL warrants to Customer that the Products shall be free from defects in material and workmanship under normal use and service for a period of one (1) year from date of shipment. Written notice and an explanation of the circumstances of any claim that the Products are defective in material or workmanship shall be given promptly by Customer to ESL, and in all events written notice must be received by ESL within the one (1) year warranty period. ESL will not be liable for any misuse, improper operations, improper installation, improper maintenance, alteration, modification, accident or unusual degradation of the Products or parts due to an unsuitable installation or operating environment. No representation or other affirmation of facts, including but not limited to statements regarding capacity, suitability for use, or performance of the Products, shall be or be deemed to be a warranty or representation by ESL for any purpose, nor give rise to any liability or obligation of ESL whatsoever. Customer’s sole and exclusive remedy in the event of breach of warranty, as set forth herein, is expressly limited to either (a) the correction of the defect by adjustment, repair, modification, or replacement; or (b) issuance of a credit or refund of the purchase price for the defective Products, at ESL’s election. In the event that a Product is defective, Customer shall request a Return Merchandise Authorization (RMA) PRIOR TO RETURNING THE DEFECTIVE PRODUCT TO ESL. Returned Products must include ESL’s RMA number and reason for the return. Freight for returning the Product to ESL is the responsibility of Customer. ESL will factory inspect, repair, modify or replace and return Product(s), or issue a credit or refund, under warranty within the above guidelines. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE ARE NO OTHER WARRANTIES EXPRESSED OR IMPLIED INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS WARRANTY EXTENDS ONLY TO CUSTOMER FROM ESL OR ITS AUTHORIZED DISTRIBUTOR OR SALES AGENT.
LIMITATION OF LIABILITY
IN NO EVENT SHALL ESL BE LIABLE FOR LOSS OF PROFITS OR INDIRECT, SPECIAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES ARISING OUT OF ANY BREACH OF WARRANTY OR AGREEMENT TO PURCHASE THE PRODUCTS OR OBLIGATIONS HEREUNDER. ESL SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN SHIPMENT, INSTALLATION OR FURNISHING OF THE PRODUCTS OR SERVICES HEREUNDER.
All rights hereunder will be governed by the laws of the State of California. The agreement for the purchase and sale of the Products is deemed to be entered into in Corona, California, regardless of the order or place of signing, and it is expressly agreed that any action or proceeding arising out of the purchase and sale of the Products, including, without limitation, actions for collection of amounts due from Customer and any warranty claims by Customer, shall be subject to the exclusive jurisdiction of the appropriate Court located in the County of Riverside, State of California, and the parties each hereby expressly consent to the personal jurisdiction in California, and hereby irrevocably and unconditionally waive any objection to the laying of venue of any such action or proceeding brought in any such Court. Customer expressly acknowledges that California is a fair, just and reasonable forum and agrees not to see removal or transfer or any such action filed by ESL. Service of any process, summons, notice or document by registered mail addressed to a party at the address set forth in this instrument shall be effective service of process against such party for any action or proceeding brought in any such Court. ESL and Customer hereby waive trial by jury in any action, proceeding or counterclaim arising hereunder. A final judgment in any such action or proceeding may be enforced in any other Court to whose jurisdiction any of the parties is or may be subject.
Customer hereby acknowledges receipt of a true and complete copy hereof. No addition to or modification of any of the Terms and Conditions of Sale as they appear herein shall be binding upon ESL unless signed in writing by a duly authorized representative of ESL. Typographical and clerical errors in quotations, orders and acknowledgments are subject to correction. The rights and obligations of Customer hereunder are not assignable without the prior written consent of ESL. Any attempt to assign any of the rights, duties or obligations hereunder without such consent is void. If any provision or provisions hereunder shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. ESL is not responsible for failure to fulfill its obligations hereunder due to causes beyond its control, or except as agreed herein. CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ ALL OF THE TERMS, CONDITIONS AND PROVISIONS HEREIN, UNDERSTANDS THEM AND AGREES TO BE BOUND BY THEM. FURTHER, CUSTOMER AGREES THAT THE TERMS, CONDITIONS AND PROVISIONS HEREIN ARE INTENDED TO SUPERSEDE ANY PRIOR INCONSISTENT TERMS, CONDITIONS AND PROVISIONS, WHETHER ORAL OR IN WRITING, EXPRESS OR IMPLIED, AND ALL OTHER PRIOR INCONSISTENT COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF. IT IS UNDERSTOOD AND AGREED THAT ESL SHALL NOT BE BOUND BY ANY CHANGES IN THE TERMS, CONDITIONS AND PROVISIONS HEREIN WITHOUT THE WRITTEN AGREEMENT OF ESL.