This order and acknowledgement, and future orders from Proinso, are subject to the following terms and conditions as well as those appearing on the reverse side hereof (the “Agreement”). By accepting this Agreement the customer agrees to be bound thereby. If the terms of this Agreement contradict the terms of any purchase order or order acknowledgement, the terms of this Agreement will take precedence. No boilerplate terms in either party’s order tracking documents will apply.
1. PRICE AND TERMS OF PAYMENT
1.1. PRICING: Unless otherwise stated in the Agreement, pricing will be stated in US Dollars (and Canadian Dollars where explicitly specified) on the order/acknowledgement form except for orders whose requested delivery date is more than 90 days after the confirmed order day. Pricing for orders with requested delivery dates more than 90 days from the confirmed order date will be priced at the applicable rates at the time of shipment. Prices that Proinso quotes to Customer are valid for 10 days unless otherwise specified. Prices on inventory price lists are subject to change without notice.
1.2. ACCEPTABLE PAYMENT METHODS: Available payment terms are (a) pre-payment with order; (b) VISA, MasterCard and Discover Card’ or (c) mutually agreed upon credit terms. All credit card transactions are subject to a three percent (3%) transaction fee assessed at time of payment.
1.3. PAYMENT CREDIT TERMS: Proinso will consider granting credit to Customer at Proinso’s sole discretion. Customers with approved terms will pay Proinso in US dollars 30 days from the date printed on the invoice, unless otherwise agreed to in writing by Proinso. Proinso reserves the right to change credit and payment terms extended to Customer at any time and without prior notification.
1.4. PAST DUE ACCOUNTS: Past Due Accounts are subject to a monthly interest charge of 1.5% (18% annualized) for the invoice amount (subject to applicable law). All finance charges for overdue payments will be assessed on the Customer’s monthly statements, and shall be due upon receipt. In no event shall the terms of this order/acknowledgement require payment in excess of the maximum amount permitted by law. Any such excess which may be collected from Customer shall at final payment of all amounts owed by applied as a credit against future invoices of Customer or returned by Proinso to Customer.
Unless otherwise indicated, no sales, use, retailer occupation, service, occupation, service use, or similar taxes are included in Proinso’s prices. Customer agrees to pay any taxes which are paid or payable, or assessed in connection with the order. Applicable sales taxes will be charged on all orders until a valid resale certificate is on file. Charges for sales taxes will not be refunded on any orders placed prior to receipt of Customer’s resale certificate.
3.1. SHIPMENT TERMS: Unless otherwise stated in this Agreement or as agreed upon in writing by Proinso, all shipments are F.O.B. shipping point of origin and Customer agrees to pay all shipping and handling costs associated with shipment.
3.2. PACKING AND SHIPPING: Proinso will pack and ship products delivered hereunder in accordance with its general practice unless specific instructions are supplies by Customer. Any additional costs incurred by Proinso as a result of special packaging and/or shipping requests will be paid entirely by Customer.
3.3. DELIVERY AND ACCEPTANCE: All delivery times are estimates only. While Proinso will use reasonable commercial efforts to achieve estimated delivery times, such estimates will not be binding. The Customer shall inspect all products immediately upon delivery to Customer to ensure that they are in conformity with the order. Any non-conformity must be reported to Proinso with 48 hours of delivery else delivery will be deemed accepted by Customer. If Customer fails to take delivery of the products within 48 hours of the date Customer is advised the Products are ready for delivery, Proinso reserves the right to warehouse the products at Customer’s expense and Customer shall pay all warehousing expense incurred together with payment of the Products. If Customer fails to take delivery within 10 days, Proinso shall be entitled to deem the delivery rejected and to resell the products. In such case, without prejudice, to any other right available under this Agreement, at law, or in equity, the deposit paid for products shall be foreit.
4. SECURITY INTEREST
Proinso retains a security interest in the Products delivered to Customer, and in their accessories, replacements, accessions, proceeds and products, including accounts receivables (collective, the “Collateral”) to secure payments of all amounts due under this Agreement. If Customer fails to pay any amount when due, Proinso shall have the right to repossess and remove all or any part of the Collateral from Customer but not from Customer’s customer. Any repossession or removal shall be without prejudice to any other remedy of Proinso hereunder, at law or at equity. Customer agrees, from time to time, to take any act and execute and delivery any document (including, without limitation, financing statements) reasonable requested by Proinso to transfer, create, perfect, preserve, protect and enforce this security interest.
4.1. WARRANTY, REPAIRS AND COMPLIANCE
4.1.1. WARRANTY: All products covered by this Agreement will be warranted per the terms of the applicable manufacturer’s standard warranty (if any) provided on the manufacturer’s website. Warranty will also be subject to manufacturer’s installation instructions. The warranty (if any) may be to the end user and not to the customer. For additional questions and details please contact the Proinso office that your products were purchased from. Proinso makes no warranties of any kind, whether express, implied, statutory or otherwise, regarding products.
4.1.2. WARRANTY EXCLUSIONS: The warranties provided herein do not cover maintenance required to repair damages, malfunctions, or service failures caused by:
188.8.131.52. Failure of Customer or Installer to follow installation, operation, or maintenance instructions.
184.108.40.206. Customer’s repair, modification, or movement of the product, or incorrect attachment to other products.
220.127.116.11. Abuse, misuse, or negligent Acts; and;
18.104.22.168. Power failure surges, lightning, fire, flood, pest damage, accident, action of third parties, and other eve4nts outside reasonable control or not arising from normal operating conditions.
4.1.4. COMPLIANCE: Many states and localities have codes and regulations governing sales, construction, installation, and/or use of products for certain purposes, which may vary from those in neighboring areas. Proinso cannot guarantee compliance, and will not be responsible for how the products are installed and used. Before purchase, it is Customer responsibility to review product application, and national/local codes and regulations, to be sure that the product, installation, and use will comply with them.
4.2. RETURNED GOODS & CANCELLATIONS
4.2.1. RETURN POLICY: No goods may be returned without prior authorization of Proinso. If a return is authorized, Customer will be issued a return authorization (RA/RMA) number, which must be clearly marked on the package. Only the original Customer may return products to Proinso. All subsequent purchases must return products through the Customer whom they directly or indirectly purchased products. Proinso will credit the purchase price of all normally-stocked goods returned with a RA number and in new condition, in original packaging; provided Proinso reserves the right, in its sole discretion, to charge a restocking charge on goods returned of up to ten percent (10%). All items must be returned with shipping prepaid and insured to the address specified by Proinso. Items that (a) Customer seeks to return more than 30 days after purchase, (b) are not in salable condition, (c) are not normally stocked, or (d) are special-order items, may not be returned for credit. Products returned to Proinso that have been damaged by Customer or another recipient will not be eligible for return credit, and will be held by Proinso only for 30 days. Customer will be notified they will not receive credit due to the damaged product, and must make arrangements for product pick-up. After 30 days, all such products will be disposed of without further liability of Proinso. Customer agrees that any credit balances issued will be applied within one (1) year of issuance. If not applied or requested within one (1) year, any balance remaining will be subject to cancellation, and Proinso shall have no further liability.
4.2.2. STOCK ITEM ORDER CANCELLATION: Except as agreed to by Customer and Proinso in writing, Customer may cancel orders for products specifically identified in the Proinso pricing schedules (stock products), subject to cancellation charges set forth below:
22.214.171.124. Fifteen percent (15%) of total order amount if cancellation is received by Proinso within 14 days before the confirmed ship date.
126.96.36.199. Ten percent (10%) of total order if cancellation is received 15 to 30 days before the confirmed ship date.
188.8.131.52. No charge when cancellation is received more than 30 days before the confirmed ship date.
4.2.3. CUSTOMER ORDER CANCELLATION: In the event that Customer cancels a custom order, Customer agrees to pay Proinso as liquidated damages, the agreed upon price for the customer ordered goods which are completed plus ten percent (10%) of the contracted price for the uncompleted portion of the goods ordered, if any, with no further responsibility by Proinso. Within a reasonable time after Customer’s written request, such completed goods will be forwarded to Customer at Customer’s Expense.
4.3. PROINSO CANCELLATION: Notwithstanding anything contained herein to the contrary, Proinso shall have the right to cancel this Agreement, without any liability whatsoever; be delivery of written notice to Customer at any time on or before the date which is ten (10) business days after the date if the execution of this Agreement or receipt of an order.
5. DISPUTE RESOLUTION
5.1.1. GOOD FAITH NEGOTIATIONS: In the event that there is a disagreement between Customer and Proinso regarding purchased goods, the parties will first attempt to resolve any dispute relation to this Agreement through good faith information negotiation.
5.1.2. ARBITRATION: Any actions to enforce or interpret this Agreement shall be settled by Arbitration in accordance with the rules of JAMS. Any party may commence arbitration by sending a written demand for Arbitration to the other party. Such demand shall set forth the nature of the matter to be resolved in arbitration. Arbitration shall be conducted at the JAMS facility nearest Sacramento, CA. The substantive laws of the State of California shall be applied by the arbitrator of the dispute. The parties shall share equally the initial costs of arbitration. The prevailing party shall be entitled to reimbursement of attorney’s fees, costs, and reasonable expenses incurred in connection with arbitration. All decisions of the arbitrator shall be final, binding, and conclusive on all parties. Judgment may be entered upon any such decision in accordance with applicable law in any court having jurisdiction thereof.
5.1.3. GOVERNING LAW: Any dispute arising out of this Agreement shall be subject to the laws of the State of California. Venue for any action filed to enforce this Agreement shall be in Sacramento County, California.
5.1.4. STATUTE OF LIMITATIONS: No action by Customer may be brought on at any time more than twelve (12) months after the facts occurred upon which the cause of action arose.
5.1.5. LIMITATIONS OF LIABILITY: The liability of Proinso hereunder for any and all claims shall not exceed the sum of Customer’s payments for the products that are subject of the dispute. Proinso shall not be liable for consequential damages, anticipated or last profits, incidental damages, loss of time, or other losses incurred by Customer or any third party in connection with this Agreement or products sold hereunder.
5.1.6. SURVIVAL: Section 5 of this agreement shall survive the termination or expiration of this Agreement.
6. FORCE MAJEURE
Except for the payment of amounts due, neither party shall be held responsible for any delay or failure in performance of any part of this Agreement to the extent that that delay or failure is caused by circumstances beyond its control (a “Force Majeure”), including, but not limited to, fire, flood, explosion, war, strike, embargo, government requirement, civil or military authority, acts of God, public enemy, inability to secure products, transportation, facilities, acts of omission of carries or other causes beyond its reasonable controller whether or not similar to the foregoing. If any Force Majeure occurs, the party delayed or unable to perform (the “Delayed Party”) shall give immediate notice to the other party (the “affected party”), and the Affected Party, upon giving prompt notice to the Delayed Party, shall be excused from performance under this Agreement for the duration of the Froe Majeure; provided, however, that the Affected Party shall take all reasonable steps and cooperate with the Delayed Party to avoid or remove the cause of the non-performance and shall promptly resume performance hereunder when the Delayed Party resumes performance. If the Delay Party cannot remove the cause of non-performance within sixty (60) days, the Affected Party may terminate this Agreement.
All documentation and information, including pricing, technical specifications and delivery estimates, attached or made in reference to or contained in the offer or order acceptance provided by Proinso shall be held by Customer in the strictest confidence, shall not be used for any purpose other than Customer’s own internal purposes and the purposes contemplated hereby and shall not be disclosed to any employee or agent of Customer except on a need-to- know basis (provided such employee or agent agrees to be bound by similar confidentiality obligations) and not to any third party whatsoever without the prior written consent of Proinso.
8. ORDER OF PRECEDENCE
This Agreement supersedes any additional or different terms and conditions asserted or provided by Customer, including but not limited to different terms and conditions in Customer’s form of purchase order. Proinso’s acceptance of purchase orders is conditioned upon Customer’s acceptance of these terms and condition, irrespective of whether Customer accepts there terms and conditions by written acknowledgement, by implication, or acceptance and payment of goods ordered hereunder. Proinso’s failure to object to provisions contained in any communications from Customer varying the terms herein shall not be deemed a waiver of the provisions herein. Neither Proinso’s commencement of performance nor delivery shall be deemed or constituted as acceptance of any additional or different terms and conditions of Customer. Proinso reserves the right to modify any aspect of this Agreement in its sole discretion, provided that orders placed with Proinso will be governed by this agreement as it exited at the time that such order was placed.
9. ENTIRE AGREEMENT
This Agreement, including the Proinso documents and policies incorporated herein by reference, shall constitute the entire Agreement between the parties with respect to the subject matter of this Agreement and shall not be modified or rescinded. The provisions of this Agreement supersede all prior oral and written quotations, communications, agreements, and undersigning of the parties with respect to the subject matter of this Agreement.