Terms & Conditions
4990 Appian Way, Suite A, El Sobrante, CA 94803-1945
Phone (510) 223-9272, www.mesanet.com, http://store.mesanet.com/
GENERAL TERMS AND CONDITIONS OF SALE
A. The term "Seller" means Mesa
Electronics, a California partnership, and/or its present and future
subsidiaries, successors and assigns. The term "Buyer"
means the third party placing the purchase order.
B. No contractual relationship between Seller and Buyer will arise until such time as Buyer has placed an order which has been accepted by Seller.
C. Stenographic and clerical errors are subject to correction.
D. Subject to the provisions hereof, all quotes submitted are firm for 30 days from the date of the quotation unless indicated differently on the face of the quotation or withdrawn earlier by written notice. Alterations or changes of quotations after 30 days may be made at the discretion of Seller without notice.
E. Orders are subject to all of Seller's General Terms and Conditions of Sale
1. SCOPE. The terms and conditions of sale contained herein, and as amended by Seller from time to time, apply to Seller's quotations and to purchase orders placed by Buyer on Seller. These terms and conditions may in some instances conflict with some of the terms and conditions on Buyer's form of purchase order or otherwise specified by the Buyer, or these terms and conditions may cover matters not addressed in Buyer’s documentation. Therefore, acceptance of the Buyer's order is made only on the express understanding and condition that insofar as the terms and conditions of this acceptance conflict with any terms and conditions of the Buyer's order or cover matters not addressed in Buyer’s documentation, Seller’s terms and conditions govern, irrespective of whether the Buyer accepts these conditions by a written acknowledgment, by implication, or by acceptance and payment for goods ordered. Seller's failure to object to provisions contained in any communication from Buyer will not be deemed a waiver of the provisions of this acceptance. Any changes from the terms and conditions of sale contained herein must be specifically agreed to in writing by an authorized officer of Seller before becoming binding on the Seller. These terms and conditions may supplement other documents provided by Seller, in which case these terms and conditions shall be construed consistent with such other documentation; provided, however, that nothing in such additional documentation shall be construed to limit any of Seller’s rights and remedies set forth herein, or to increase Seller’s liability to Buyer above and beyond the limitations set forth herein.
2. WEBSTORE ORDER PURCHASES. When Buyer's purchases from Seller's webstore Seller does not have access to the credit card numbers. Buyer is required to set up an account, and a password. When the order has shipped Buyer will receive notification with the tracking number and is to keep track of the shipment. International Buyer's are responsible for all custom fees when purchasing from the Seller. International Buyer's that ship to the U.S. require a valid address, and a valid U.S. telephone number, invalid addresses are subject to cancelation by Seller and Buyer would be redirected to purchase from one of Seller's international dealer's. Buyer's webstore orders placed may include a message in the 'Customer Comment' field to either enter a; U.S. telephone number, purchase order number, message, or request for a COC: Certificate of Conformity. Upon the reciept of a webstore order a shipment typically ships within one week unless otherwise informed, or if Buyer requires additional amendments then within three weeks or sooner. Once Buyer is about to complete an order before checking out and when entering your credit card information make sure the exact name and zip code or postal code is provided. For international credit card payments Buyer may need to contact the bank of the credit card to inform them of a U.S. credit card purchase. Webstore credit card payment transaction for completed orders are on hold then captured once the order has shipped and notified. If Buyer's order requires a price adjustment Seller will capture the appropriate charges prior to the shipment, copies of the order/invoice and receipt would be included with the shipment and is emailed.
3. HOLIDAYS. Week-ends and holidays are excluded; New years day, Martin Luther King day, George Washington's Birthday, Memorial day, Independence day, Labor day, Veterans day, Thanksgiving and Christmas holidays.
4. TERMS (N10 2%N30) METHOD OF PAYMENT. To apply for an open account with Seller, Buyer's may apply for terms by contacting the Seller. Seller eestimates at least a month period for approval. Buyer must require a history of at least three years of purchases from the Seller. Unless expressly specified otherwise of Seller's sales confirmation, payment terms for Buyer's having an open account with Seller shall be at (Net 30 or 2% Net 10 / Net 30) from the date of Seller’s invoice (The 2% discount applies only on product(s). Buyer's who do not have an open account with Seller must make payment in full prior to the shipment release of goods either by credit card, ACH or Wire payment, (International Buyer payments are subject to all wire fees and EEI Freight fees). Buyer must submit credit and bank references to Seller. Domestic and international Buyer's who have an open account with Seller will be eligible for the 2% discount on product(s) only within 10 days from the date of Seller’s invoice. International Buyer's who have an open account with Seller may become eligible for the 2% discount by requesting a copy of the invoice prior to the date of shipment and by making payment in full within 10 days from the date of Seller's invoice. Credit card payments are not eligible for the 2% discount. All payments shall be in U.S. Dollars, payment shorts will delay shipments. International payments may be made by check, money order, ACH or wire payment, credit cards; Visa, Master Card, Discover or American Express USD. International Buyer's are responsible for all wire fees. International orders over $2,000.00 USD includes the wire and EEI freight fees and should contact Seller for processing. Buyer will be charged Math 1.5% per month (but not more than is permitted under applicable law) on overdue accounts. In the event of Buyer’s default, Seller shall be entitled to recover accrued late fees and costs of collection, including without limitation attorney’s fees. If Buyer fails to make payment for goods delivered as herein provided, or if, in Seller’s opinion, a change in Buyer’s financial condition or other circumstances has created reasonable concerns as to Buyer’s credit worthiness, Seller may at any time limit or cancel the credit of Buyer as to time and amount and may demand payment before delivery of any part of the goods. On any order on which credit is not extended by Seller, shipment or delivery shall be made at Seller’s election. Payment must be made for the goods without regard to whether Buyer has made or will make any inspection of the goods.
5. TYPES OF ORDERS BY THE SELLER TO BUYER. Seller will make every attempt to meet delivery schedules, any delays by the seller in delivering product(s) are due to the supplier's lead times or to any cause beyound Seller's reasonable control shall not give rise to the liablity on the product of the Seller.
NCNR: non-cancelable and non-returnable to be signed by Seller and Buyer.
LEAD TIME FOR BUILDS: Depending on the cards and availabilablty of components the Seller has an estimated lead time of 15 weeks for builds
A.) International Buyer's placing orders directly from the Seller are processed internally by Seller and subject to all wire fees at $20. to $30., and EEI fees from $10. to $15. depending the freight company the Seller uses to ship. Buyer can provide freight account number.
B.) International Buyer's orders over $2,500. USD are to be emailed directly to Seller. International webstore orders over $2,500. USD are subject to cancelation and are processed directly by Seller, Buyer is to provide the Seller a credit card and card information for payment or can be paid by wire for the order/Invoice.
C.) Blanket scheduled dated large orders require dock dates. For the first initial shipment and if a partial shipments if available the Seller can reserve for the customer and/or Seller's first initial build has an estimated lead time of 15 weeks and depends on the availability of components, once the build has been completed cards are reserved to ship accordingly to meet the Buyer's dock dated. NCNR may apply.
D.) Low Demand Cards require quantity lot builds, pricing required, NCNR apply.
E.) Industrial Temperature testing process; 20% is added to each card for Industrial temperature range at (-40°C to +85°C), process may depend on the type of card, pricing required, depending on the quantity may require an NCNR.
F.) Conformal Coated cards, requires quantity lot builds and pricing, NCNR applies, advise freight insurance on confoamal coated cards by Buyer or Seller.
G.) Custom designed boards and Engineering fees, NCNR apply, advise freight insurance on custom designed cards by Buyer or Seller.
6. DEMO/60 DAY EVALUATION. Demo product(s) may be purchased by Buyer via credit card for a sixty (60) day evaluation period. Demo product(s) may be returned for credit to Buyer of the full purchase price, less shipping and insurance charges, provided that product(s) are returned to Seller prior to the end of the 60-day evaluation period in their original condition, in the original anti-static packaging (with sufficient antistatic packaging material), shipping and insurance prepaid, and provided that Buyer is required to requested an RMA number from Seller prior the shipment. If any portion of the product(s) are returned in damaged, altered or modified condition, Buyer shall remain liable for the full invoice amount.
7. SELLER’S LIMITED WARRANTY. Seller warrants the product(s) it manufactures to be free from defects in materials and workmanship under normal use and service for two (2) years from the date of shipment by Seller. This warranty shall not apply to malfunctions or failures resulting from misuse, abuse, neglect, alteration, problems with electrical power, usage not in accordance product instructions, acts of nature, improper installation, or repairs made by anyone other than Seller or by Buyer pursuant to Seller’s instructions. In the event of malfunction or failure arising from a defect covered by this limited warranty, Seller will repair any product(s) returned to Seller within two (2) years from the date of shipment by Seller, provided that Seller’s examination discloses to Seller’s satisfaction that the product was defective and covered by this limited warranty. Seller may, at its option, replace the product in lieu of repair. Seller’s sole and maximum liability for breach of its warranty herein is limited to the obligation, at Seller’s sole discretion, to repair or (repair fees may apply) at Seller’s option, replace or credit Buyer's account, any goods delivered hereunder which are found by Seller to be defective under the terms of this warranty, provided that Buyer follows the return procedures set forth in paragraph 8 . In addition, Seller shall have no liability to Buyer to the extent that any failure or malfunction is caused by noncompatibility with other components Seller’s obligation to honor this warranty is contingent upon Seller’s receipt of payment in full for the product(s) entitled to this warranty. In the event that the exclusive remedy provided under this warranty is determined upon judicial review to have failed in its essential purpose through no fault of Buyer, the alternate exclusive remedy shall be the refund of the purchase price of the defective goods.
SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SELLER HAS NOT AUTHORIZED ANYONE TO MAKE ANY REPRESENTATION OR WARRANTY OTHER THAN AS PROVIDED ABOVE. THE FOREGOING STATES THE ENTIRE WARRANTY LIABILITY OF SELLER.
8. RETURN PROCEDURES REQUEST RMA; RETURN MERCHANDISE AUTHORIZATION NUMBER. Prior to returning any product(s) to Seller before the two year warranty service, Buyer must notify Seller by e-mail directly provide the order/invoice number purchased from and billing and shipping company, include the name of product(s), quantity and serial number beginning with (ms + seven digits). Buyer is required to provide the full details of the failure or malfunction of the product(s) before returning to the Seller, shipments without an RMA number will be refused. Such notice shall be given within thirty (30) days after Buyer’s discovery of the failure or malfunction. Upon receipt of this information, Seller shall provide Buyer with service assistance and/or shipping instructions and an RMA number. Buyer shall be responsible for returning product(s) to Seller in its original anti-static packaging, shipping prepaid, and insured by Buyer. Buyer shall retain shipping information, including RMA and tracking numbers, which shall serve as Buyer’s proof of return. Any product(s) replaced by Seller shall become the property of Seller. All returned product(s) must be received by Seller no later than the last day of the warranty period, or there will be no warranty coverage. If, upon examination of the returned goods, Seller determines that they are not covered by the warranty, Seller reserves the right to charge Buyer for parts and labor at Seller’s then current labor rate. Seller will advise Buyer prior to assessing these charges.
9. BUYER’S WARRANTY. Acceptance of goods is a warranty by Buyer that Buyer is solvent as of the date of shipment. With respect to goods delivered hereunder, Buyer agrees to accept responsibility for (i) their selection to achieve Buyer's intended results, (ii) their use, (iii) the results obtained therefrom and (iv) the selection of, use of and results obtained from any equipment, programs or services not provided by Seller and used in connection with goods delivered hereunder. Buyer further warrants that it is buying the Product(s) for its own internal use and not for resale as standalone Product(s), unless otherwise agreed between Buyer and Seller under separate written agreement.
10. RoHS RESTRITION OF HAZARDOUS SUBSTANCES DISCLOSURE . All components are purchased from authorized vendors are RoHs compliant. All product(s) manufactured by Seller are RoHS compliant. Products that are not RoHS compliant may contain lead or other proscribed materials, or may have some RoHS components installed that may contain matte tin.
11. NO LICENSE. Goods or any parts thereof sold hereunder may be protected by intellectual property rights of Seller, including, but not limited to, rights under issued and pending patents, mask work rights, copyright rights, trademark rights and trade secret rights. Neither the sale of goods or any parts thereof hereunder nor the provision by Seller of any supporting or related documentation, technical information or advice shall confer on Buyer any license, express or implied, under any intellectual property rights of Seller covering or related to (i) apparatus or circuits in which the goods or parts thereof may be used; (ii) a process, machine, use or application in connection with which the goods or parts hereof may be used; (iii) the process of their manufacturer; or (iv) a combination in which the goods or parts hereof may be used.
12. TAXES. Any tax or government charge by any federal, state or municipal government applicable to the goods sold hereunder now imposed or hereafter becoming effective during the term of any contract made hereunder, except for Seller’s franchise taxes and taxes on Seller’s net income, shall be added by Seller to the sales price where Seller has the legal obligation to collect or pay same, and shall be paid by Buyer unless Buyer provides Seller with a proper tax-exemption certificate, and references the tax exemption number in its purchase order. Buyer shall pay any duties, levies, taxes, brokerage fees or customs fees imposed in the Buyer's country to shipments made under this contract.
10. TITLE, DELIVERY AND INSURANCE. Buyer shall be responsible for all shipping costs, duties, taxes and license fees incurred in the shipment of product(s) to Buyer. Unless Buyer provides to Seller a signed shipping certificate of waiver provided by Seller, all shipments of product(s) to Buyer shall be made with common carriers designated by Seller, fully insured at Buyer’s cost, and title and risk of loss shall transfer to Buyer upon delivery to Buyer. Buyer's requesting uninsured shipments of product(s) must provide to Seller a signed shipping certificate of waiver provided by Seller. For all uninsured shipments, or for all shipments made with common carriers designated by Buyer, title and risk of loss shall transfer to Buyer upon delivery of goods by Seller to the common carrier. For international shipments, Buyer shall be responsible for obtaining, at its own cost, all licenses and export/ import documents required to deliver the product(s) to the country of destination.
11. DELIVERY SCHEDULE. Seller will use commercially reasonable efforts to initiate shipment and schedule delivery as close as possible to Buyer’s requested delivery schedule but shall not be liable to Buyer for failure to meet any delivery schedule or for the costs of procurement of substitute goods. Any delivery dates provided by the Seller represent Seller’s best estimate of the time at which product(s) will be shipped from the factory. Lead times are subject to change based on the availability of parts/raw materials from vendors. For scheduled blanket purchase order(s) received, the first initial scheduled date is the same as the standard lead time. Seller assumes no liability for loss, damage, or consequential or other damages due to delays. In the event of any delay, Seller shall have such additional time within which to perform its obligations under the purchase order as may be reasonably necessary under the circumstances; and Seller shall also have the right, to the extent necessary in Seller’s reasonable judgment, to apportion fairly among its various customers in such manner as Seller may consider equitable Seller’s product(s) then available for delivery. If, as a result of any such contingency, Seller is unable to perform under the purchase order in whole or in part, then, to the extent that it is unable to perform, the purchase order shall be deemed terminated without liability to either party, but shall remain in effect as to the unaffected portion of the purchase order, if any. Seller reserves the right to make deliveries in installments. Delivery of a quantity that varies from the quantity specified in Buyer’s order shall not relieve Buyer of its obligation to accept delivery and pay for the goods ordered. Delays or changes in schedules due to Buyer directed actions are subject to price adjustments.
12. CANCELLATIONS, CHANGES. Should Buyer cancel, reschedule or reconfigure its order, Buyer shall be liable to Seller for reasonable additional charges which shall include, but not be limited to, all costs and expenses incurred by Seller in connection with procuring and filing, rescheduling or reconfiguring Seller’s order. Without in any way being deemed to grant Buyer any right of cancellation or return, in the event that Seller, in Seller’s sole discretion, shall agree to accept a cancellation and/or a return of any product(s) sold, such cancellation and/or return shall be subject to a 15% restocking fee due and payable to Seller, in addition to the additional charges described above. Notwithstanding the foregoing to the contrary, Buyer shall have no right to cancel orders for, or to return to Seller, modified or custom goods.
13. FORCE MAJEURE. Seller shall not be liable for delay in performance or failure to perform in whole or in part the terms of this Agreement due to causes beyond the reasonable control of Seller, including, without limitation, strike, labor disputes, shortages of material, war, riot or civil commotion, acts of the public enemy, insurrection, sabotage, or fire, flood or other acts of nature.
14. ASSIGNS. Any contract made hereunder is binding upon and shall inure to the benefit of the successors and assigns of the entire business and good will of either Seller or Buyer, or of that part of the business of either used in the performance of such contract, but is not otherwise assignable. Seller may subcontract any part of the work or services to be provided hereunder as Seller deems necessary. Buyer affirms that there exist no third party beneficiaries to Buyer's rights hereunder unless Buyer specifically identifies such beneficiaries on the face of Buyer's order or Buyer's acceptance of Seller's quotation.
15. MODIFICATION OF GENERAL TERMS AND CONDITIONS. No addition to or modification of any of the provisions herein or upon the face or reverse of any order shall be binding upon Seller unless made in writing and signed by a duly authorized representative of Seller.
16. GOVERNING LAW, JURISDICTION AND VENUE. This Agreement is governed by and construed under the laws of the State of California and the United States without regard to conflicts of laws provisions thereof. The sole jurisdiction and venue for actions related to the subject matter hereof is the state and U.S. federal courts in the State of California, located in Contra Costa County, California, U.S.A.
17. USE OF SELLER’S GOODS IN LIFE SUPPORT, NUCLEAR AND CERTAIN OTHER APPLICATIONS. Goods sold by Seller are specifically manufactured for industrial control systems, and are not designed, intended or authorized for use in life support, life sustaining, nuclear or other applications, including, but not limited to, transportation operating systems, aircraft, missiles, and aerospace, in which the failure of such goods could reasonably be expected to result in personal injury, loss of life or severe property or environmental damage. Buyer acknowledges that use of Seller’s goods in such product applications is understood to be fully at the risk of Buyer and that Buyer is responsible for verification and validation of the suitability of Seller’s goods in such application. Buyer agrees that Seller is not liable, in whole or in part, for any claim or damage arising from use in such applications. Buyer agrees to indemnify, defend and hold Seller harmless from and against any and all claims, damages losses, costs, expenses and liabilities arising out of or in connection with such use.
18. LIMITATION OF LIABILITY. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT SELLER’S LIABILITY HEREUNDER.
EXCEPT FOR BODILY INJURY OR DEATH OF A PERSON, UNDER NO CIRCUMSTANCES WILL SELLER, ITS EMPLOYEES, OFFICERS OR DIRECTORS, AGENTS, SUCCESSORS OR ASSIGNS BE LIABLE TO ANYONE UNDER ANY PRODUCT ORDER, SCHEDULE, OR THESE TERMS AND CONDITIONS, PURSUANT TO ANY THEORY BASED ON CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT FORESEEABLE OR FORESEEN,FOR: (A) BUSINESS INTERRUPTION COSTS, COST OF REWORK, RETESTING, PROCUREMENT OF SUBSTITUTE GOODS, REMOVAL AND REINSTALLATION OF GOODS; OR (B) ANY SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LITIGATION COSTS, LOSS OF DATA, PRODUCTION OR PROFIT, GOODWILL, LOSS OF REVENUE, OR LOSS OF UNITS; REGARDLESS OF WHETHER SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR WHETHER THERE IS A TOTAL AND FUNDAMENTAL BREACH OF THIS AGREEMENT, OR WHETHER ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
SELLER’S LIABILITY FOR ANY CLAIMS SHALL NOT EXCEED THE AMOUNT PAID OR PREPAID ON ACCOUNT BY BUYER FOR THE GOODS GIVING RISE TO SUCH CLAIMS. BUYER SHALL BE DEEMED TO ASSUME ALL LIABILITY FOR ANY AND ALL DAMAGES ARISING FROM OR IN CONNECTION WITH THE USE OR MISUSE OF THE GOODS BY BUYER, ITS EMPLOYEES, CUSTOMERS AND OTHERS.
SELLER SHALL NOT BE LIABLE FOR AND BUYER AGREES TO INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ANY CLAIMS BASED ON SELLER’S COMPLIANCE WITH BUYER’S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS, OR MODIFICATION OF ANY GOODS BY PARTIES OTHER THAN SELLER, OR USE IN COMBINATION WITH OTHER PRODUCT(S).
19. RELATIONSHIP OF PARTIES. Seller and Buyer expressly understand and agree that Buyer is an independent contractor in the performance of each and every part of this order, is solely responsible for all of its employees, agents, and will indemnify Seller from any and all claims, liabilities, damages, debts, settlements, costs, attorneys' fees, expenses and liabilities of any type whatsoever that may arise on account of Buyer's activities or those of its employees or agents (including but not limited to direct and indirect distributors or subdistributors), including without limitation unauthorized representations or warranties (or failing to effectively disclaim all warranties and liabilities on behalf of Seller to the same extent as disclaimed herein) to its customers.
20. BASIS OF BARGAIN. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS HEREIN ARE MATERIAL, BARGAINED FOR BASES OF ANY ORDER OR CONTRACT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER ANY ORDER OR CONTRACT AND IN THE DECISION BY EACH PARTY TO ENTER INTO SUCH ORDER OR CONTRACT.
21. PROPRIETARY DATA. Buyer agrees not to use or disclose drawings, specifications, technical information or other data furnished by Seller and identified by Seller as confidential or proprietary data without the prior written consent of Seller. Buyer agrees and acknowledges that any improvement or modification to such confidential or proprietary data shall be the sole property of Seller, regardless of whether any such improvement or modification was the creation of Buyer. Buyer further agrees to use all appropriate copyright and proprietary notices on all goods delivered hereunder regardless of their intended use. Buyer recognizes that such proprietary data is unique and consents to the remedy of injunction in addition to damages for violation of the terms of this provision.
22. TOOLING. Unless otherwise expressly agreed in writing, Seller retains rights and title to and possession of any tooling, drawings, mask sets, tapes, fixtures, original documentation and intellectual property used in the furnishing of goods.
23. GENERAL. In the event of the appointment of a trustee, receiver, or liquidator for all or a portion of Buyer's property, Buyer's insolvency, or any voluntary or involuntary petition in bankruptcy by or against Buyer, Seller may terminate any order without further obligation or liability of Seller to Buyer.
In the event any one or more of the provisions contained herein shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this contract shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.