All quotations and sales by Kerstin & Thorsten, its subsidiaries or affiliates (“Seller”) are subject to these terms and conditions.
1. All sales are final.
2. Freight charges may not reflect actual transportation costs. Seller reserves the right to modify any terms prior to shipment, require payment in advance, or delay or cancel any shipment or order by reason of Customer’s creditworthiness or should Customer fail to fulfill any obligation.
3. Seller may select a carrier for shipping. Seller’s responsibility for any loss or damage ends, and title passes, when products are delivered to the carrier, to Customer, or to Customer’s agent (including, without limitation, any test house or value added service provider), whichever occurs first.
4. As a reseller, Seller does not warranty any products it sells.
5. THERE ARE NO REPRESENTATIONS OF WARRANTIES OF ANY KIND (INCLUDING, WITHOUT LIMITATION TO, IN ADVERTISING MATERIALS, OR OTHER DESCRIPTIVE LITERATURE OR POSTS ON SOCIAL MEDIA OR OTHERWISE) BY SELLER, EXPRESS OR IMPLIED, AS TO THE CONDITION OR PERFORMANCE OF ANY PRODUCTS OR SERVICES, THEIR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, NON INFRINGEMENT, OR OTHERWISE. SELLER ASSUMES NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR SUPPLIER’S PRODUCT OR SERVICE SPECIFICATIONS OR THE PERFORMANCE OR ADEQUACY OF ANY DESIGN OR SPECIFICATION PROVIDED TO SELLER.
6. Seller’s rights and remedies will be cumulative and not exclusive. Customer is responsible for all losses, costs and expenses incurred by Seller in collecting any sums owing by Customer. Seller shall have the right to offset against any amounts owed by Seller or any Seller subsidiary to Customer. These terms and conditions, all transactions and any other matter arising out of or related hereto or thereto are governed by the laws of the State of Florida, excluding its conflicts of law principles. The parties waive any right to trial by jury.
7. Products or services are deemed accepted by Customer unless Customer notifies Seller in writing within 10 days of delivery of performance of shortages, damage or defect. No returns or exchanges may be made for any reason without compliance with Seller’s returns or exchange policy. If Customer refuses to accept tender or delivery of any products or returns any products without authorization from Seller, such products will be held by Seller awaiting Customer’s instruction for 20 days, after which Seller may deem the products abandoned and dispose of them as it sees fit, without crediting Customer’s account. Customer warrants that any products returned are the same products Seller shipped to Customer and, except as disclosed in writing to Seller, are unaltered.
8. Seller will not be liable for any failure or delay in its performance or in the delivery of services or shipment of products, or for any damages suffered by Customer by reason of such failure or delay, when such failure or delay is caused by, or arises in connection with, any fire, flood, accident, riot, earthquake, severe weather, war, governmental interference or embargo, strike, shortage of labor, fuel, power, materials or supplies, delay in delivery by Seller’s suppliers or any other cause or causes beyond Seller’s reasonable control. Seller reserves the right to cancel without liability any order, the shipment of which is or may be delayed for more than 30 days by reason of any such cause. Seller reserves the right to allocate in its sole discretion among customers or potential customers, or defer or delay the shipment of, any product which is in short supply.
9. This document, and not any purchase order or other Customer document (which, if construed to be an offer is hereby rejected), will be deemed an offer and is a rejection of any other terms or conditions. Customer, by accepting any products or services, making any payments or ordering any products or services having previously received these terms and conditions, will be deemed to have assented to these terms and conditions, notwithstanding any terms contained in any prior or later communication from Customer and whether or not Seller will specifically or expressly object to any of Customer’s terms. Seller’s failure to object to any document, communication or act of Customer will not be deemed a waiver of any of these terms and conditions. Any addition or change to these terms and conditions must be specifically agreed to in a signed writing by Seller before becoming binding on Seller.
10. Products may be subject to export or resale restriction or regulation, and Customer acknowledges that it will comply with such restrictions and regulations. Any statement as to product country of origin, ECC Number, IHTS Code, parametric or conflict mineral data or compliance with applicable law (including, without limitation, that products are lead-free or RoHS compliant) is as provided to Seller by its suppliers, and Seller does not warrant its accuracy and will not be liable for any error with regard to same. Customer uses such information at its own risk. Buyer certifies that (i) it complies with all applicable laws, including the labor laws and regulations (including fair labor standard laws) and anti-bribery regulations (including the FCPA and UK Bribery Act) in the jurisdictions where it operates and (ii) it complies with GPH’s Business Partner Code of Conduct.
11. Except for the exclusive warranty remedy described in paragraph 3, above, NEITHER SELLER NOR ITS SUPPLIERS WILL HAVE ANY LIABILITY OR OBLIGATION TO CUSTOMER OR ANY OTHER PERSON FOR ANY CLAIM, LOSS, DAMAGE, OR EXPENSE CAUSED IN WHOLE OR IN PART BY THE INADEQUACY OF ANY PRODUCTS OR SERVICES FOR ANY PURPOSE, BY ANY DEFICIENCY OR DEFECT IN ANY PRODUCTS OR SERVICES (WHETHER OR NOT COVERED BY ANY WARRANTY), BY THE USE OR PERFORMANCE OF ANY PRODUCTS OR SERVICES OR BY ANY FAILURE OR DELAY IN SELLER’S PERFORMANCE HEREUNDER, OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, COST OR REPLACEMENT GOODS OR SERVICES (COVER), REWORK, LOSS OF DATA, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY OR LOSS OF BUSINESS OR PROFIT, WHETHER OR NOT CUSTOMER HAS INFORMED SELLER OF THE POSSIBILITY OR LIKELIHOOD OF ANY SUCH DAMAGES. IN NO EVENT WILL SELLER’S LIABILITY, REGARDLESS OF BASIS (INCLUDING TORT, CONTRACT, INDEMNIFICATION OR OTHERWISE), EXCEED THE PRICE PAID FOR THE PRODUCTS OR SERVICES GIVING RISE TO THE CLAIM.
12. Notwithstanding paragraph 3, the performance of any value added service may void the supplier’s warranty. If technical advice is offered or given in connection with the use of any products or services it will be as an accommodation to Customer and Seller shall have no liability whatsoever for the content or use of such advice.
13. No order or Customer obligation may be cancelled, rescheduled, reconfigured, or assigned without Seller’s prior written authorization and, in such event, Customer will be liable to Seller for any additional costs and expenses incurred by Seller. Prices are subject to change by Seller upon Customer rescheduling or reconfiguration of orders. Prices are also subject to change in response to supplier price increases or if a price has been quoted in error, whereupon, Customer may cancel the undelivered portion of any affected order by delivering written notice to Seller prior to the shipment thereof and within 10 days of its receipt of notice of the price increase. Seller may assign its accounts receivable. In order to defray the cost of Customer account administration, any amount owed to Customer which remains unclaimed by Customer for a period of twelve months will become the property of Seller.
14. Customer understands that the products or services (collectively, “Items”) it purchases or receives from Seller may be subject to export, re-export, or other restrictions. Buyer agrees to comply with all applicable laws and regulations relating to the export and re-export of such Items obtained by Buyer. In particular: (a) Customer certifies that to its knowledge, the Items will not be used directly or indirectly, sold, re-exported or incorporated into products for the benefit of persons or entities named on any United States denied or restricted party list or any other applicable government denied or restricted party list. Such lists include the Entity List at Part 744 of the Export Administration Regulations and the U.S. Office of Foreign Assets Control Specially Designated National list; (b) Customer certifies that to its knowledge, except as authorized under applicable laws and regulations, the Items will not be exported or re-exported directly or indirectly, diverted or transshipped to or via any country in violation of any United Nations, United States, European Union or any other applicable embargo; (c) Customer understands that U.S. origin Items, and foreign manufactured products that incorporate U.S. origin content are subject to the U.S. Export Administration Regulations. In the event of re-export, Buyer will obtain all required permissions (i.e., export licenses, permits, etc.) from the U.S. government and any other applicable government; (d) Customer certifies that to its knowledge, except as authorized under applicable laws and regulations, the Items will not be used, sold, re-exported or incorporated into products used directly or indirectly in the design, development, production, stockpiling, or use of chemical or biological weapons, nuclear programs, missiles, and maritime nuclear propulsion projects; (e) Customer certifies that to its knowledge, except as authorized under applicable laws and regulations, the Items will not be used, sold, re-exported or incorporated into products for use by military, police or intelligence entities, for any space applications, or for use in foreign vessels or aircraft; (f) if purchasing ITAR controlled Items, Buyer understands and agrees to comply with 22 CFR 122, U.S. International Traffic in Arms Regulation (“ITAR”). Customer understands that any re-export of any ITAR controlled Items, or any re-export of an end-item that incorporates any ITAR controlled component, requires authorization from the United States Department of State; (g) Customerr certifies that it is not an embassy, agency or subdivision of, or otherwise affiliated with a non-U.S. government; and (h) Customer certifies that the Items it purchases from Seller will not be used for in the military, defense or government.
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