All sales made by Ecliptek Corporation ("Ecliptek") to its customers (each a "Buyer") are subject to these terms and
conditions. Buyer's acceptance of these terms and conditions shall be made by providing a purchase order number
to Ecliptek. These terms and conditions shall apply to sales of all Ecliptek products.
- RISK OF LOSS. Unless otherwise specifically agreed to in writing by Ecliptek,
all sales made hereunder shall be FOB Costa Mesa, CA and title to products priced FOB Costa Mesa,
CA shall pass to Buyer upon delivery to the carrier at such shipping point.
Unless Buyer requests in writing and submits proof of insurance, Ecliptek shall insure all shipments for value and
include such costs as may be incurred in its billing as an expense of Buyer.
All prices are based on shipments made FOB Costa Mesa, CA. Price quotations shall remain in effect for the
period of time specified in the quotation. All prices are subject to change without notice and will be established at
time of order acceptance by Ecliptek.
Payment terms are net thirty (30) days unless otherwise specified. A one percent (1%) service charge will be
added for every month or part of a month that the amount due remains unpaid after it is due.
- SECURITY INTEREST.
Ecliptek retains a purchase money security interest under the Uniform Commercial Code as enacted in the State of
California in the goods sold until payment in full has been made. In the event of default by Buyer under these
terms and conditions, Ecliptek shall have the rights and remedies of a secured creditor under the Uniform
Commercial Code. Buyer agrees to execute such financing statements and other documents as Ecliptek may
request in order to perfect Ecliptek's security interest.
Ecliptek shall use its best efforts to make deliveries in the quantities and at the times specified in this order. Unless
Buyer specifies shipping instructions, shipment and delivery will be made by the carrier and in the manner
designated by Ecliptek. Ecliptek Corporation shall not be liable for delays or defaults in deliveries due to causes
beyond Ecliptek's control and without its fault or negligence.
Ecliptek warrants that its products will be free from material defects and further warrants that such products will
conform to the description and/or specified parameters set forth in the Ecliptek Specification Sheet.
THE WARRANTIES SET FORTH HEREIN ARE EXPRESSLY IN LIEU OF ANY OTHER EXPRESS OR IMPLIED
WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT, OR ANY OTHER OBLIGATION ON THE PART OF ECLIPTEK. NO
DESCRIPTIONS OTHER THAN THOSE IN THIS DOCUMENT OR IN THE ECLIPTEK SPECIFICATION SHEET
SHALL BE DEEMED A WARRANTY BY DESCRIPTION OR OTHERWISE HAVE ANY LEGAL EFFECT. IF
EXAMPLES WERE EXHIBITED TO BUYER, SAME WERE FOR GENERAL INFORMATIONAL PURPOSES
ONLY AND SHALL NOT BE DEEMED A WARRANTY BY SAMPLE OR MODEL OR OTHERWISE HAVE ANY
BUYER'S SOLE AND EXCLUSIVE REMEDY, AND ECLIPTEK'S SOLE LIABILITY, WITH RESPECT TO ANY BREACH
OF WARRANTY, SHALL BE, AT ECLIPTEK'S OPTION, (A) REPAIR OR REPLACEMENT OF THE DEFECTIVE OR
NONCONFORMING PRODUCT AS SET FORTH BELOW OR (B) REFUND OF BUYER'S PURCHASE PRICE FOR THE
DEFECTIVE OR NONCONFORMING PRODUCT.
Buyer shall promptly notify Ecliptek of any defective or nonconforming product. All defective or nonconforming product shall be returned to
Ecliptek freight prepaid and insured by Buyer to Ecliptek and will be evaluated by the Ecliptek Quality Assurance
department to determine the validity of the claim and to generate the necessary corrective action. All returned
products must be accompanied by complete documentation, including an RMA and product discrepancy report.
Liability is voided if returned parts are damaged by Buyer. Repaired or replaced products will be returned to
Buyer, freight prepaid and insured by Ecliptek. Products not qualifying for warranty work will be returned at
Buyer's risk and expense. Ecliptek may charge at its standard rates for any handling of such products.
IN NO EVENT WILL ECLIPTEK'S
TOTAL LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING OUT OF ANY CAUSE
WHATSOEVER (WHETHER SUCH CAUSE BE BASED ON CONTRACT, NEGLIGENCE, STRICT LIABILITY,
OTHER TORT OR OTHERWISE) EXCEED THE PURCHASE COST OF THE PRODUCTS
IN RESPECT TO WHICH SUCH CAUSE ARISES OR, AT THE OPTION OF ECLIPTEK, THE REPLACEMENT
OF SUCH PRODUCTS; IN NO EVENT SHALL ECLIPTEK BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES RESULTING FROM ANY SUCH CAUSE.
Ecliptek shall have the right to cancel purchase orders of Buyer in the event Buyer fails to comply with any
payment obligation to Ecliptek. In the
event Ecliptek shall have reasonable grounds to doubt, at any time, Buyer's financial responsibility to perform
under this contract, Ecliptek shall demand in writing adequate assurances of performance from Buyer and shall,
until such assurances are received from Buyer, suspend its performance under the contract. Upon receipt of a
justified demand, as provided hereunder, Buyer's failure to provide adequate assurances of performance,
acceptable to Ecliptek, within thirty (30) days of the receipt of such notice, shall be considered a repudiation of the
contract. In the event of a breach by Buyer, Buyer shall only be entitled to the pricing at the level for the units
delivered prior to termination and Ecliptek may pursue any other right or remedy which it may have for breach.
- FORCE MAJEURE.
Ecliptek shall not be liable to Buyer for any failure to comply with these terms and conditions due to causes beyond
its control, including but not limited to, war (whether or not an actual declaration thereof is made), insurrection,
sabotage, riot, or other acts of civil disobedience, acts of public enemy, epidemic, quarantine restriction, labor
dispute, failure or delay in transportation, shortage of labor, fuel, raw material or machinery, accident, fire,
explosion, flood or storm or other acts of God, or acts of the judiciary, government or any agency thereof (each, a
"Force Majeure Event"). Notwithstanding anything herein to the contrary, a Force Majeure Event shall not relieve
Buyer from any losses suffered by Ecliptek with respect to (a) products ordered by Buyer and which are already in
transit to Buyer, and (b) products that are specifically fabricated and not readily saleable to others.
No change may be made to an existing order without the written approval by an authorized Ecliptek employee.
Any approved change will list, if any, the amended cost and/or delivery considerations to be incurred by Buyer.
The change shall be made once Buyer accepts in writing Ecliptek's approved change. Buyer shall not have
grounds to cancel an existing order due to Ecliptek not accepting a change by Buyer. Any additional or different
terms included on (or on the reverse of) any request for quotation, purchase order or other document of Buyer
shall not be binding unless accepted by Ecliptek in a signed writing. Buyer's acceptance of any product shipped
under (or packed with) these terms and conditions shall indicate Buyer's acceptance of these terms and conditions.
All orders are non-cancelable, non-reschedulable, and non-returnable to Ecliptek unless otherwise granted in
writing by an authorized Ecliptek employee. Buyer shall be responsible for the full purchase price of any product
that is completed, in transit, or in production.
Unless otherwise provided, and not withstanding Section 7 hereof, Ecliptek reserves the right to modify the
specifications of products ordered by Buyer providing that the modifications do not materially affect the form, fit, or
function of the products.
- GOVERNING LAW.
The terms of this agreement and all rights and obligations under it shall be governed by the laws of the State of
California without regard to conflict of law rules or principles which might refer to the law of another jurisdiction.
Buyer agrees to exercise any right or remedy in connection with these terms and conditions exclusively in, and
hereby submits to the jurisdiction of the State of California, Courts of Orange County, California, or the United
States District Court at Santa Ana, California. The state and federal courts situated in Orange County, California
will have non-exclusive jurisdiction and venue over any dispute or controversy that arises out of these terms and
- SALES AND OTHER TAXES.
The prices shown on the sales order do not include any taxes, import or export duties, tariffs, or custom charges.
Buyer agrees to pay Ecliptek the amount of any federal, state, county, or municipal or other taxes, duties, tariffs, or
custom charges levied by any jurisdiction, foreign or domestic, which Ecliptek is required to pay on account of the
ownership at the place of installation or during transit of the material or equipment which is the subject of this
contract, or an account of the transportation, sale, or use of the material or equipment.
(a) Any clause required to be included in a contract of this type by any applicable law or administrative regulation
having the effect of law shall be deemed to be incorporated herein. (b) No terms or conditions other than those
stated herein, and no agreement or understanding, oral or written, in any way purports to modify these terms.