1. FORMATION OF CONTRACT:
These terms and conditions constitute a complete statement of the agreement between Client and Access Trax, LLC, which shall not be supplemented or amended, except as superseded by a document issued by Access Trax, LLC or by a separate written agreement signed by both parties. Terms and conditions of Client additional or varying from those set forth herein shall not be binding on Access Trax, LLC unless specifically agreed to in writing by Access Trax, LLC. Access Trax, LLC’ acceptance or acknowledgement of a purchase order or other general business terms shall not constitute such written agreement to supplement or amend this agreement.
2. CANCELLATIONS OR CHANGE ORDER:
Orders are firm upon receipt of the order form by Access Trax, LLC. Access Trax, LLC declines any responsibility in a case of mistake or omission on the order form by client. Cancellations and change of orders, for any reason whatsoever, must be done within 2 days after placing the order. They shall require a confirmed acceptance in writing by Access Trax, LLC. In a case of order cancellation, whether partial or total, Client will be charged for all work already done and expenses incurred by Access Trax, LLC.
3. QUOTATIONS; PRICE:
Written quotations automatically expire thirty (30) calendar days from the date issued unless otherwise stated on the face of the quotation. Quotes are subject to termination by notice within that period. Quotations are subject to correction in the event of stenographic or clerical errors. Prices quoted are for Client set forth therein, specific quantities shown, released for manufacture and shipment at one time to one destination unless otherwise stated. Any change in the quantity of an order and/or split shipments are subject to price revision.
Unless otherwise agreed to in advance by Access Trax, LLC or set forth in Access Trax, LLC’ quotation, 100% of the total amount of the order will be due and payable at the time of placing the order. In the event that the cost of shipping is significantly higher than originally quoted, the Client may be billed for the difference upon receipt of the invoice from the shipping carrier. Payments are to be made in U.S. Dollars. Client shall reimburse Access Trax, LLC for all costs of collecting overdue amounts, including reasonable attorney’s fees and expenses. If Client fails to make any payment in accordance with the price or these terms and conditions, or if there is any change in Client’s credit standing, or for any other reason deemed good and sufficient by Access Trax, LLC, Access Trax, LLC may, in its sole discretion and without incurring any liability therefore, cancel any order or orders, require Client to give such security as Access Trax, LLC may specify to insure payment or require payment in advance. All costs and expenses incurred by Access Trax, LLC as a result of its exercise of any right or option under this paragraph shall be for the account of Client.
5. ANTICIPATION AND INTEREST:
Client will be required to pay interest on an overdue invoice at the rate of eighteen percent (10%) per annum or the rate charged by Access Trax, LLC’ factor, if any, from time to time, whichever is higher.
The prices stated in any Access Trax, LLC invoice may not include any city, state or federal taxes on manufacture, sales, use, and the like. Wherever applicable, a separate charge can be made for such taxes, to be paid by the Client whether noted in this document or subsequently.
The use of any trademarks, or the description of any products by trademark on the face hereof, shall not be deemed to give Client either the authority or a license to utilize the said trademark in connection with subsequent description of the products, whether on resale or otherwise. The authority to use such trademark may be secured only by license of the owner thereof.
8. SHIPMENTS; DELIVERY:
Any duties, customs taxes, storage and other costs shall be Client’s sole responsibility. Method and route of shipment are at Access Trax, LLC’s discretion unless both parties agree Client will arrange the method and route. When Client specifies method of shipment, any additional shipping expense will be charged to Client. Shipping charges are not intended to guarantee the delivery at or to destination. Client shall dispose of the packaging materials and other refuse at its own cost- please recycle where applicable. Products are delivered at the address given on the order form within the time frame specified in Access Trax, LLC’s quote. If, for any reason, the delivery should take longer, Access Trax, LLC will inform Client. Delivery shall be subject to and contingent upon strikes, labor difficulties, riot, war, governmental interference or embargoes, fires, floods, accidents, acts of God, force majeure, shortages of fuel, power, materials or supplies, transportation delays, or any case beyond the control of Access Trax, LLC. All deliveries are subject to restrictions imposed from time to time by government and customs regulation, order or directive. In the event of such delay, Access Trax, LLC shall have the option to extend the time for delivery of a period equal to the number of days of such delay.
If the Client is not satisfied, or if the product is damaged, the Client may be asked to return the product to rectify the problem. However, because of the nature of the product, Access Trax, LLC’s guarantee is limited to questions of manufacturing, and not Client’s error or inaccuracy in measurements sent by Client. All returns shall be made at Access Trax, LLC’s facility within 21 days of receipt. Access Trax, LLC is not responsible for shipping fees. Returns policy applies to the Trax panels only.
Access Trax, LLC warrants that its products will be free from defects in materials and workmanship, under normal use, recommended storage, proper installation and use in accordance with Access Trax, LLC’s instructions, and responsible care by Client for a period of 180 days from date of first shipment to the original owner. Client shall not hold Access Trax, LLC liable for degradation, malfunction, damages and/or accidents due to improper storage, exposure, use of tracked vehicles or tracked utility equipment, installation of the products or alteration made to the products without Access Trax, LLC’s consent and instructions. ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, ARE HEREBY EXCLUDED AND DISCLAIMED. Access Trax, LLC will, at its sole option, repair, replace or credit Client’s account for any equipment or part which proves defective under its warranty provided that Client notifies Access Trax, LLC in writing of such defect within the appropriate warranty period. This warranty does not include reimbursement for the expense of installation, removal of equipment, transportation or any other expenses that may be incurred. Authorization must be obtained from Access Trax, LLC before any product is returned. In no event shall Access Trax, LLC be liable for prospective profits, or indirect, incidental, or consequential damages of Client. In the event of a breach or repudiation by Access Trax, LLC hereunder, the aggregate amount of recovery, judgment, or award which may be obtained by Client against Access Trax, LLC hereunder shall not exceed the purchase price of the products (to the exclusion of supervision fees, if any). The right to recover the purchase price of said products shall constitute the sole and exclusive remedy of Client hereunder.
11. LIABILITY OF Access Trax, LLC:
In the event of a breach by Access Trax, LLC hereunder, the aggregate amount of recovery, judgment, or award which may be obtained by Client against Access Trax, LLC hereunder shall not exceed the price of the products paid for by Client. The right to recover the said price of the products shall constitute the sole and exclusive remedy of Client hereunder.
Access Trax, LLC shall not be liable for normal production defects or for customary variations from Client specifications. Client should anticipate modifications to the products as a result of weather conditions, notably in the case of extreme temperatures. Client will make a thorough examination of each product promptly after arrival, and in any event before the product is used or altered in any manner whatsoever whether by Client or its designee. Client will give immediate written notice to Access Trax, LLC of any claims or defects or inferior quality, or any other condition given rise to a claim, and will afford Access Trax, LLC reasonable opportunity to examine the product. Pending such examination by Access Trax, LLC, the product shall not be used, or altered in any manner whatsoever, and if Client shall use, or alter the product, this shall constitute an unqualified acceptance of the same, and Access Trax, LLC shall have absolutely no responsibility in respect to it. Failure to follow strictly the procedures established by this paragraph shall constitute a waiver of any claim of defect.
Client shall be in default hereunder if any one or more of the following events occurs: (A) Client shall default in fulfilling any of its obligations to Access Trax, LLC; (B) a receiver, liquidator, or trustee of Client, or of any of its property, is appointed by court order; (C) Client is adjudicated bankrupt or insolvent; (D) any property of Client is sequestered by court order; (E) a petition is filed by or against Client under any bankruptcy, reorganization, arrangement, insolvency, dissolution or liquidation law of any jurisdiction; or (F) Client becomes insolvent, makes an assignment for the benefit of its creditors, admits in writing its inability to pay its debt generally as they become due, or consents to the appointment of a receiver, trustee, liquidator of Client or of all or any substantial part of its property. In any such case, all unpaid amounts shall, at Access Trax, LLC’s option, become immediately due and payable and Access Trax, LLC shall have the right to consider this contract with Client cancelled and to recover damages, and shall further have all the rights and remedies, including those of a secured party, provided by applicable law.
14. TITLE RETENTION CLAUSE:
All sales are subject to a title retention clause. Consequently, transfer of ownership of the products sold to Client is suspended until full payment of the purchase price, interest and incidental costs has been made. Risks are borne by Client from the time the products are delivered at Client’s warehouse. Client must therefore ensure good conservation of the products and their packaging, their conformity with the sales documents, as well as their identification in Client’s warehouses and business locations, until transfer of ownership in Client’s favor. In case of non-payment for the products upon the due date, as in the case of non-fulfillment of any of Client’s obligations, Access Trax, LLC, in its sole discretion, shall have the right to cancel the sales contract. Access Trax, LLC shall also have the right to repossess the products or to obtain a security interest in the same. To this effect, Client hereby gives an irrevocable power of attorney to Access Trax, LLC to complete, sign and file, at Client’s cost, any financing statement against Client. If Access Trax, LLC must repossess any unpaid products, Client agrees to pay as liquidated damages a sum equal to 15% of the agreed upon purchase price of such products for each month in which such products were in the possession of Client. Access Trax, LLC shall have the right to apply all partial payments made by Client for such products to the payment of the liquidated damages heretofore mentioned.
Any dispute, controversy, or claim arising out of or relating to the contract formed by the placing of an order or the performance hereof or the product provided hereunder shall be referred to, and determined and settled by, arbitration in accordance with the Rules of Practice and Procedure then obtaining of the International Centre for Dispute Resolution of the American Arbitration Association (the ‘AAA’). The arbitration shall be conducted by a single arbitrator chosen by the parties or, if the parties cannot agree upon a single arbitrator within fifteen (15) days after a party giving notice to the other of a proposed choice for an arbitrator, then by a single arbitrator appointed by the San Diego, California office of the AAA. The arbitration shall be conducted in the English language in San Diego, California. The arbitrator shall have the power to decide all questions of arbitrability. The arbitration proceedings shall be governed procedurally by said Rules, without reference to state arbitration law, and at the request of either party, the arbitrator will enter an appropriate protective order to maintain the confidentiality of information produced or exchanged in the course of the arbitration proceedings, which information shall be used for the sole purpose of said arbitration. The final judgment of the arbitrator shall be in the form of a reasoned, written opinion, and shall be issued within sixty (60) days of the conclusion of the arbitration proceeding. The arbitrator may award to the prevailing party, if any, as determined by the arbitrator, all of its costs and fees, including, without limitation, AAA administrative fees, arbitrator fees, travel expenses, out-of-pocket expenses (including, without limitation, such expenses as copying, telephone, facsimile, postage, and courier fees), witness fees, and reasonable attorneys’ and other professional fees. The awards of the arbitrator shall be specifically enforceable by any federal or state sitting in San Diego, California, to which court Client and Access Trax, LLC hereby consent and submit to its jurisdiction. Client and Access Trax, LLC further agree that the said court may issue such orders or judgments as may be necessary to compel arbitration hereunder. The authority of the arbitrator is expressly subject to the provisions of Paragraph 11 of these Terms and Conditions, which shall control.
16. LAW CONTROLLING:
The contract formed by the placing of an order shall be governed and construed in accordance with the laws of the State of California.
Each of the provisions of this contract, and of these Terms and Conditions is separable. In the event that any of the said provisions hereof shall, for any reason, be held to be void or unenforceable the remaining provisions shall remain in full force and effect, and shall control.