All goods and services furnished by Axys Actuators, LLC. ("Axys Actuators") are provided pursuant to these Terms and Conditions ("Terms and Conditions") whether provided following an order placed electronically, verbally, or on paper, whether the order is placed directly through Axys Actuators or through an Axys Actuators representative, and whether the order is placed following Buyer's review of Axys Actuators's catalog or website, or following receipt of a Quotation only, or following the exchange of other documents (the catalog website Quotation and all other documents, hereafter, jointly, the “Quotation”). Acceptance by Axys Actuators of Buyer's order is expressly conditioned upon Buyer's acceptance of these Terms and Conditions, including those on the face of the Quotation, and any provisions of Buyer's order in conflict with these Terms and Conditions are expressly rejected. Buyer acknowledges that no representation or warranty other than those contained in this document have been made or relied upon. No additions or modifications shall be valid unless confirmed in writing by Axys Actuators. Axys Actuators IS NOT BOUND TO FURNISH ITS GOODS OR SERVICES EXCEPT IN ACCORDANCE WITH THESE TERMS AND CONDITIONS.
Prices for goods shall be those in effect on the date of invoice unless otherwise provided by the Quotation or agreed to in writing by Axys Actuators. Unless otherwise provided on the face of the Quotation or agreed by Axys Actuators in writing, price and delivery terms shall be F.O.B. shipping point. Unless otherwise agreed in writing, Axys Actuators will select the route and manner of shipment, reserves the right to make delivery in installments when necessary, to invoice each installment separately, and to expect payment for each installment within Axys Actuators's selling terms. All risks of loss or damage shall pass to Buyer at the place and time such goods are placed into the possession of the carrier or shipper, in accordance with the previously referenced F.O.B. shipping point term. Buyer shall be responsible for obtaining and paying for insurance to cover any loss to Buyer. Buyer shall pay Axys Actuators for the contract price in the event of loss of the goods. If Buyer fails to accept delivery according to the agreed upon delivery schedule, Axys Actuators may cancel the then remaining balance of the order. Such cancellation, if elected by Axys Actuators, shall be in addition to, and not in lieu of, any other rights or remedies which Axys Actuators may have at law or equity. Prices are good for only quantities indicated. If shipment or any other act or condition affecting payment for the goods or any part of them shall be delayed on account of Buyer, payment shall be due as if shipment had been made, a reasonable storage charge may be made, and such storage shall be at the risk of Buyer. Axys Actuators shall not be liable for any direct, indirect, consequential, special, or incidental losses or damages to Buyer or to any third parties resulting from Axys Actuators's delay in shipment regardless of cause, including but not limited to those causes set forth in the Force Majeure section of this document.
If Buyer requests any change in quantity, specification or design relating to any goods or services, or changes of delivery date and/or schedules, such proposed change shall be subject to the terms and conditions of this Quotation and must be approved in writing to be binding upon Axys Actuators.
Goods furnished or services performed by Axys Actuators will be deemed final at the time of purchase by Buyer. A purchase may be returned if a written notice has been provided to Axys Actuators, setting forth all of the defects upon which the rejection is claimed. Claims for factory damage or shortages shall not be considered unless made in writing within thirty (30) days after receipt of the goods or services and accompanied by reference to our bill of lading and invoice numbers. Buyer's claims for damage or shortage in transit must be filed by Buyer against carrier. Defective goods shall be held for Axys Actuators's inspection or disposition, and refunds or repairs will be issued post inspection.
All photographs, samples, descriptions, drawings or intellectual property provided by Axys Actuators to Buyer (collectively, “Axys Actuators Content”) shall remain the property of Axys Actuators and shall only be used by Buyer to market Axys Actuators products to third parties. Buyer shall include in any materials provided by Axys Actuators to Buyer incorporating Axys Actuators Content, all copyright and trademark notices and any other indications of ownership of the Axys Actuators Content. All use of Axys Actuators Content by Buyer shall cease and all Axys Actuators Content shall be returned to Axys Actuators upon demand by Axys Actuators and any license created hereunder, implied or otherwise, is terminable at will by Axys Actuators and is hereby expressly terminated pursuant to Section 18 upon termination of this agreement. Upon demand by Axys Actuators Buyer shall immediately take down and remove access to all Axys Actuators Content, including all Axys Actuators Content posted on third-party sites at the direction of, or due to the actions of Buyer. If Buyer fails to immediately secure such take downs and removals, Axys Actuators, acting as Buyer’s agent, may make seek and make application for such take downs and removals on behalf of Buyer and in Buyer’s name and in such event Buyer shall render every assistance to Axys Actuators. Buyer hereby appoints Axys Actuators as Buyer’s agent for this purpose. Further, Buyer agrees that Axys Actuators shall be entitled to equitable relief from Buyer, including but not limited to a restraining order or other injunctive relief against Buyer, to obtain compliance if Buyer fails to comply with any provision of this Agreement. Axys Actuators shall also be entitled to remuneration for the resources expended to take down and remove any such Axys Actuators Content, including reasonable attorney’s fees.
Buyer shall have no right to return any goods furnished by Axys Actuators. Axys Actuators may, in its sole discretion, authorize Buyer to return goods. Axys Actuators may authorize the return of goods without charging a restocking charge, but in most cases, Axys Actuators will only authorize the return of goods subject to a restocking charge, the amount of which will depend on the type of goods being returned. The restocking charge shall be deducted from the amount refunded to Buyer.
Prices do not include any federal, state or local taxes. Any applicable excise, import, sales, use or similar taxes, whether federal, state, provincial or local, and any transportation and other charges shall be the responsibility of and be paid by Buyer and, if paid by Axys Actuators, Buyer agrees to reimburse Axys Actuators for any such payment and further agrees that Axys Actuators may add any such payments to the purchase price of the goods.
Payment shall be due prior to shipment unless adequate credit remains on an account in good standing. All orders received are subject to credit approval. Buyer agrees to submit from time to time to Axys Actuators those items reasonably requested in order to establish or update Buyer's credit. Axys Actuators shall be entitled to charge interest on past due accounts at a rate of 1.5% per month (18% annually). Whenever Axys Actuators, in good faith deems itself insecure, it may, without prejudice or waiving any other rights or remedies it may have at law or equity, cancel any outstanding orders with Buyer and/or hold production/shipment of any unfilled orders; modify or revoke its extension of credit to Buyer; and take any other steps permitted by law and necessary or desirable to secure Axys Actuators with respect to Buyer's payment of goods and services furnished or to be furnished. Buyer will pay Axys Actuators's actual costs of collection, including but not limited to court costs, litigation expenses, and reasonable attorney's fees, incurred for collection of any delinquency. Title to the goods shall remain with Axys Actuators until Buyer receives physical possession of the goods and the goods are fully paid for by the Buyer. Buyer shall have no right of offset against amounts owed to Axys Actuators.
All Axys Actuators® products are guaranteed to be free of actual defects in material and workmanship, provided any such defect be reported to Axys Actuators® in writing within one (30) days of shipment from factory. This warranty is limited to replacing or repairing, at Axys Actuators®’s option, F.O.B. Axys Actuators®’s factory, any part which, upon Axys Actuators® inspection is found to have a defect in material and/or workmanship. Axys Actuators® in no event shall be liable for indirect or consequential damages arising out of the use of Axys Actuators® products. Components purchased by Axys Actuators® from others for inclusion by Axys Actuators® shall be warranted only to the extent set out above and/or to the guarantee or warranty, if any, made by the supplier of said component. No warranty is made by Axys Actuators®, express or implied, that Axys Actuators® products as used in a customer’s design and specifications are fit for that customer’s specific purpose.
Services performed by Axys Actuators will be conducted in a manner consistent with that level of care and skill ordinarily exercised by members of the industry currently practicing under similar conditions. As an independent contractor of Buyer, Axys Actuators will provide evaluation, advice, and guidance to Buyer, but Buyer recognizes that Axys Actuators is a technical contractor and not a professional consultant.
APART FROM THE ABOVE EXPRESS WARRANTY, THERE ARE NO WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. Axys Actuators® expressly reserves the right to substitute materials in the products described in the catalogs and any supplements thereto; however, this shall not apply to special order products and/or custom products where Axys Actuators® is advised in writing of specific material requirements and agrees in writing to comply with the requests for such specific materials. Any and all warranties shall be construed and enforced under the Laws of the State of Washington.
Buyer shall defend, indemnify and hold Axys Actuators harmless from and against any and all claims, liabilities, loss, costs, damage or expense (including reasonable attorneys' fees) of any kind or nature whatsoever relating to the performance by Axys Actuators hereunder, including without limitation, claims made for property damage or personal injury (including death), whether such claims are premised on contract or on tort (including, without limitation, strict liability). This indemnity provision shall not apply where such damage or injury is attributable solely to the negligence of Axys Actuators, its employees or agents.
Axys Actuators will not be liable for any delay in the performance of its obligation under this Quotation or for any damages suffered by the Buyer by reason of such delay, when such delay is directly or indirectly caused by or in any manner arises from: fires; floods; accidents; riots; acts of God; governmental interference; embargoes; strikes; labor difficulties; shortages of labor, fuel, power, materials or supplies; transportation delays; any existing or future laws or acts of the Federal or any State government (including specifically, but not exclusively, any orders, rules or regulations issued by any official or agency or any such government) affecting the conduct of Axys Actuators's business; or any other cause or causes (whether or not similar in nature to any of those specified above) beyond Axys Actuators's control, including but not limited to modifications to the fabricating specifications requested by the Buyer subsequent to commencement of production by Axys Actuators.
The failure of Axys Actuators upon knowledge of any default or violation by Buyer of any of the Terms and Conditions of this Quotation, or any sales agreement entered into hereafter, to enforce its rights or remedies shall not be construed as a waiver of such default or violation, or of any provision hereof, or of any of its rights or remedies.
Any controversy or claim of Buyer arising out of or related to any transaction with Axys Actuators must be commenced within one (1) year after the cause of action has accrued. Axys Actuators shall be entitled to reimbursement of all costs and expenses, including reasonable attorneys' fees, from the Buyer relating to any lawsuit in which Axys Actuators prevails in any amount or on any claim.
Except as otherwise agreed in writing or if another writing incorporates these terms thereby making these terms supplemental to such writing, this constitutes the entire agreement between Axys Actuators and Buyer, superseding all prior Quotations and understandings, oral or written. All such previous communications are hereby abrogated and withdrawn, and no stipulations, representations or agreements by Axys Actuators, or its officers, agents, or employees shall be binding upon Axys Actuators unless reduced to writing and attached to and incorporated by reference herein, and no local, general, or trade custom shall alter or vary the terms hereof. Any questions, disputes, controversies, or litigation between Axys Actuators and Buyer, including but not limited to disputes concerning the validity, interpretation, or effect of the Quotation, or interpretation and enforcement of the rights and obligations of the parties hereunder, shall be governed by the laws of the State of Washington and the exclusive venue for resolving any such questions, disputes, controversies, or litigation shall be a state or federal court located in Clark County, Washington. If any provision of this Quotation is determined invalid under applicable law, such invalidity shall be limited to such provision without invalidating the remainder of the other Terms and Conditions hereof; and if any provision of this Quotation is found to be ambiguous or in conflict with any other provision of this Quotation, such ambiguity or conflict shall be resolved in the manner which provides the greatest protection and limitation of liability to Axys Actuators.
Axys Actuators will not be liable for any punitive damages or legal fees or any special, indirect, or consequential damages (including but not limited to loss of use or loss of profit) or fees which arise out of the performance of the services by Axys Actuators. Axys Actuators and Buyer agree that absolutely no action arising out of the services may be brought by either party more than one year after substantial completion of the services. The entire liability of Axys Actuators, or its officers, directors, agents, or employees, and Buyer's exclusive remedy for performance or nonperformance of the services shall be the adjustment or correction of the services by Axys Actuators. If after repeated efforts, Axys Actuators is unable to adequately perform, Buyer shall be entitled to recover a pro-rata credit for the sums actually paid for the defective portion of the services.
Either party may terminate the services and all obligations arising under the proposal for the reason of the failure by the other party to comply with its obligations upon 30 days prior written notice to the other party. In the event of such termination, Buyer will pay to Axys Actuators all amounts which are due and payable to Axys Actuators for the services performed through the date of such termination. In addition, in the event the services are terminated as the result of the failure of Buyer to perform its obligations, Buyer will pay to Axys Actuators a termination charge of 20 percent of the cost of the remaining services to be performed by Axys Actuators.
Axys Actuators may keep a record of any information provided by Buyer to Axys Actuators for the sole purpose of in house record keeping. Axys Actuators will not use this information to contract specific details in machine readable form. Axys Actuators will not pass on all data provided by Buyer to any vendor of Axys Actuators or other third party for any reason including for advertisement, marketing or opinion research purposes.