Odyssey Electronics Terms & Conditions
1. IDENTIFICATION OF THE PARTIES.
This contract for the
sales of goods is entered into between Odyssey Electronics,
Inc., hereinafter "Seller", and the party seeking to
purchase goods as specified on the front side of this
document, hereinafter "Buyer". This sales agreement shall be
known as the "Agreement".
Buyer's acceptance of goods from Seller
constitutes a full and unequivocal acceptance of these terms
and conditions. Buyer agrees that Seller's terms and
conditions as stated herein shall become the entire contract
between Buyer and Seller and shall supersede Buyer's order
form. Buyer further agrees that Seller expressly rejects any
and all terms or conditions set forth on Buyer's order form
or similar document which add to, remove from, or otherwise
conflict or modify the terms and conditions set forth
herein. Buyer shall have the right to inspect the goods
before accepting them and shall have the right to reject
nonconforming goods. Payment shall be made in U.S. Currency.
3. PRODUCT PRICING.
Unless otherwise stated, all prices
quoted by Seller are based on U.S. Currency and are
guaranteed until 5:00 p.m. Pacific Standard Time (PST) on
the date of quotation, Freight on Board (FOB) Seller's
shipping dock or other designated point of shipment. All
applicable state and federal taxes, or assessments, of any
kind, which apply to the sale of the goods covered herein
will be added to the purchase price and shall be paid by
Buyer, except to the extent that Buyer has provided Seller
with a valid tax exemption certificate.
Delivery of all goods covered by this agreement
will be FOB Seller's shipping dock or other designated point
of shipment. Delivery will be deemed completed and risk of
loss or damage to the goods shall pass to Buyer once the
goods have been tendered to Buyer or a carrier for shipment
to Buyer. In no instance shall Seller be liable for direct,
indirect, special, incidental, consequential or any other
form of damage, injury or harm suffered by Buyer that is
caused or otherwise brought about by the delay in shipment
or receipt of goods purchased under this agreement. All
goods sold under this Agreement shall be deemed accepted by
Buyer unless Buyer notifies Seller, in writing, within ten
(10) calendar days of shipment by Seller, that goods sold
under this Agreement are damaged or defective. Buyer must
make claims for shortages in writing to Seller within ten
(10) calendar days from the date of receipt.
If Buyer's financial condition becomes impaired, or Buyer
fails to make any payment in accordance with the terms of
this Agreement, Seller may at its sole option defer or
decline to make any or all shipments under this Agreement
except on receipt of security satisfactory to Seller or cash
payment in advance of delivery.
All goods remain the property of the Seller until all invoices
or other outstanding amounts have been paid for in full.
Until such payment has been made, the Purchaser shall store
the Goods in such a way as to enable them to be identified
as the property of the Seller. Notwithstanding such
retention of Title the Purchaser may re-sell the goods to
its own customers in the ordinary course of its business.
The Seller may withdraw this privilege at any time at his
discretion. Title of goods cannot pass to a third party
until all invoices or outstanding amounts are paid in full.
The Purchaser shall accordingly set aside funds from any
re-sale of the goods in whatever form to cover full payment
of the Sellers goods. Upon any breach of contract, the
Purchaser shall return any goods as requested and allow the
Seller immediate access to any premises where goods are held
to enable identification and repossession as required by the
Seller. No liability will be accepted by the Seller for loss
or damage howsoever incurred during the exercising of the
above right of repossession. The Purchaser shall insure the
goods from the time of delivery and at all times while the
goods remain in their possession for the full invoiced value
of the goods.
Seller warrants all goods sold herein to be
free from defects in material and workmanship under normal
use and conditions for which the product was designed and
intended. Seller does not, however, expressly or impliedly
warrant that the goods sold herein are fit for a particular
purpose as the goods are provided to Buyer solely upon
Buyers' specification and Seller has made no inquiry as to
Buyers' intended usage of the goods themselves, except with
respect to the export laws of the United States of America.
i. For Products sold hereunder, which are not manufactured
by Seller, the warranty delivered to Seller by the vendor or
manufacturer of such product shall be assigned to buyer and
shall be provided expressly in lieu of any other warranty by
ii. For products sold herein under, which are manufactured
by Seller, Seller warrants the product for the design life
of the product.
iii. Seller's liability for defective product shall be
limited to either repair or replacement of the defective
product, to be determined at Seller's sole discretion, and
Seller assumes no risk of and shall not in any case be
liable for any other damages, including, without limitation,
any special, incidental, consequential or punitive damages
arising from breach of warranty or breach of contract
relating to use of products sold under this sales Agreement.
All products come with a Thirty (30) day limited warranty for
form, fit and function - unless otherwise agreed upon by
seller and purchaser and documented on the purchase order.
A complete comprehensive test report must be provided by the
purchaser to receive a return merchandise authorization (RMA).
8. LIMITATION ON LIABILITY.
In no event shall Seller be
liable for any loss of use, revenue, profit or customer, or
for any direct, indirect or consequential damages arising
out of, connected with, or resulting for the sale of goods
under this Agreement.
9. MERCHANDISE RETURN POLICY AND PROCEDURE.
acknowledges that Seller will not accept returned
merchandise from Buyer which is not accompanied by a Return
Merchandise Authorization (RMA) Form previously issued by
Seller for the goods to be returned. Seller will accept only
new, unused product in its original packaging unless prior
written authorization has been obtained from Seller and that
authorization accompanies the returned goods. Buyer is
responsible for paying all return freight expenses and the
risk of loss remains with the Buyer until the returned goods
are physically received and accepted by the Seller. All
claims for shortage, damage or shipment errors must be made
within ten (10) calendar days of invoice date. Our liability
shall be limited to the invoice value of the materials or
its replacement. All shipping errors must be authorized and
received by our customer service manager within twenty (20)
calendar days of invoice date. Subject to Odyssey
Electronics' approval, you may return product within fifteen
(15) calendar days after the invoice date for a full credit
against further purchases. Products that are issued an RMA
number after the 15th calendar day of purchase, and up to
thirty (30) calendar days after the purchase date may be
returned but for the then prevailing market value, or the
invoice, whichever is less, for credit against future
purchases. Products returned after the thirty (30) calendar
days from the purchase date on the invoice are credited for
future purchases at the then prevailing market value, or
invoice, whichever is less, and also a 15% restocking fee
will be charged. This RMA number will expire in ten (10)
calendar days from the above date.
10. PROPRIETARY AND CUSTOM SPECIFICATION PRODUCTS.
sold, which are specially designed, configured, manufactured
or assembled, based upon Buyer's specification, plan, design
or request are non-cancelable and non-returnable for any
11. CHANGES OR CANCELLATION OF ORDER.
Orders accepted by
Seller are not subject to change or cancellation by Buyer
without first obtaining Seller's written authorization and
upon payment of a cancellation fee equaling fifteen percent
(15%) of the total price of the goods. Seller may at its
sole option waive or lower the cancellation fee, however,
any waiver must be made in writing and must be signed by an
officer of Seller.
In the event that a dispute arises between
Buyer and Seller regarding this Agreement, Buyer agrees that
the dispute shall be resolved through binding arbitration
conducted in Orange County, California by a neutral
arbitrator of the American Arbitration Association (AAA) and
according to the rules set forth by the AAA. Notice of
demand for arbitration shall be filed in writing with the
other party to this Agreement and with the AAA. The demand
for arbitration shall be made within a reasonable time after
the claim, dispute or other matter in question has arisen
and in no event shall it be made after the date when
institution of legal or equitable proceedings based upon
such claim, dispute or other matter in question would be
barred by the applicable contractual or other statue of
limitations. The award of the arbitrator shall be final and
judgment may be entered in accordance with applicable law in
any court having jurisdiction over the parties.
13. LAW APPLICABLE TO AGREEMENT.
Any dispute, which arises
between Buyer and Seller regarding goods sold under this
Agreement, or the breach, termination, or validity of the
Agreement, which is not resolved through arbitration, shall
be adjudicated in the courts of the State of California,
County of Orange or the United States Federal District
Court, Central District. The laws of the State of
California, without regard to its conflict-of-laws rules or
where the parties are headquartered or domiciled, shall
govern the entire Agreement and all provisions contained
herein or otherwise contemplated.
14. ATTORNEY'S FEES.
If any action is commenced by either
party in a court, or through arbitration, to enforce or
interpret the terms and conditions of this Agreement, the
party finally prevailing in such proceeding or action (after
appeal, if any) shall be entitled to recover from the
unsuccessful party reasonable attorney fees, costs, and
necessary disbursements, in addition to any other relief to
which the prevailing party may be entitled.
In the event that one, or more, of the
provisions of this Agreement are found to be unenforceable,
the unenforceable provision shall have no effect on the
other provisions of this Agreement. The remaining provisions
shall continue in force.
16. INTELLECTUAL PROPERTY.
If an order includes software or
other intellectual property, such software or other
intellectual property is provided by Seller to Buyer subject
to the copyright and user license, the terms and conditions
of which are set forth in the license agreement accompanying
such software or other intellectual property. Nothing herein
shall be construed to grant any rights or license to use any
software or other intellectual property in any manner or for
any purpose not expressly permitted by such license
Buyer warrants and represents that Buyer
has thoroughly examined and has become familiar with the
terms and conditions of this sales Agreement. Buyer's
acceptance of some or all of the goods specified in this
Agreement shall constitute unequivocal assent by Buyer to be
bound by this Agreement. Any order submitted on Buyer's own
form containing statements, clauses, or conditions
modifying, adding to, repugnant to, or inconsistent with the
terms and conditions of sale contained in this Agreement
will be accepted by Seller only with the express
understanding that the obligations of Buyer and Seller shall
be determined solely by this Agreement. Seller's failure to
object to provisions contained in any communication from
Buyer shall not be deemed an acceptance of those provisions
or a waiver of the provisions of this Agreement. No
representative of Seller has the authority to orally modify,
rescind, or revise any of the terms or conditions of this
Agreement, and these terms constitute the entire agreement
of the parties with respect to the subject matter of this
Agreement. For any waiver or revision of the terms and
conditions of this Agreement to be effective, it must be in
writing and must be signed by an officer of Seller.