TERMS OF SALE
1.1. These are the terms and conditions of sale (“Agreement”) of Earbyte Inc. (hereinafter referred to as “Seller”) , which apply to your purchase of products, software, and/or services with brand name Antelope Audio (together, “Product”), ordered online.
Earbyte Inc. is the official exclusive reseller of Antelope Audio branded Products for the territory of the United States of America and a non-exclusive reseller for the rest of the world.
You (hereinafter referred to as “You” or “Buyer”) agree to these terms by placing your order.
1.2. The Buyer’s order is conditioned upon Buyer’s acceptance of the terms and conditions herein. Should any provisions affixed to the purchase order or other communication from Buyer conflict with these Terms, these Terms shall prevail. Seller’s failure to object to provisions contained in any communication/order from Buyer shall not be deemed a waiver of the provisions herein or acceptance of the said provisions. Any exclusions in application or alteration of the provisions of these Terms shall specifically be agreed to in writing, signed by Seller and Buyer before becoming binding on either party.
1.3. Should, for any reason a potential buyer, acting for its own or representing a legal entity, does not understand and/or disagrees with any of the terms and conditions contained here below, it shall not place an order for Products.
2.1. All orders must identify the products, unit quantities, preferable delivery dates and any other information requested by the Seller. All orders placed by Buyer are subject to explicit acceptance or cancellation by Seller, at Seller’s sole discretion. Seller is not legally bound for any availability, based on the statements or description of its products published at its official websites. The contract for the supply of Products will only be formed when Seller accepts a potential buyer’s purchase order.
2.2. Orders may not be canceled or rescheduled without Seller’s written consent. Seller shall have the right to cancel any unfilled order without notice to Buyer in the event that Buyer becomes insolvent, adjudicated bankrupt, petitions for or consents to any relief under any bankruptcy reorganization statute, or becomes unable to meet its financial obligations in the normal course of business.
III. PRICE, TAXES AND QUOTATIONS
3.1. The prices of the Products are those specified on the invoice. Price quotations shall automatically expire in twenty (20) days from the date issued, or as otherwise stated in the quotation. Seller reserves the right to make special price offers under specific circumstances.
3.2. Seller is entitled to change pricing for Products in the event of an increase in Seller’s cost, production’s cost and change in market conditions or any other causes affecting Seller. Unless otherwise agreed to in writing by the parties, prices quoted by Seller are those current at the date of quotation and shall be subject to variation by Seller.
3.3. All prices are exclusive of any present or future sales, revenue or excise tax, value added tax, turnover tax, or other tax applicable to the manufacture, import or sale of any product. Such taxes, when applicable, shall be paid by Buyer unless Buyer provides a proper tax exemption certificate. All prices are net and exclude delivery costs. Delivery costs (if any) shall be covered by and at the expense of the Buyer. The exact amount of the shipping costs will vary depending on the destination and will be duly announced to the Buyer.
IV. PAYMENT TERMS
4.1. Seller requires payments in advance and as a precondition for dispatching the ordered Products. The price for the ordered products shall be paid following Seller’s acceptance of the Buyer’s Purchase order and issuance of the invoice. Unless otherwise agreed in writing, payment may be made by credit card, PayPal or wire transfer (all fees are borne by the Buyer).
4.2. If Buyer fails to make each payment when it is due, Seller reserves the right to suspend or cancel performance under any or all purchase orders. In the event of default by Buyer, Seller shall be entitled to costs, fees, and expenses, including but not limited to recovery of reasonable attorney fees, court costs and fees, and collections costs. Unless otherwise agreed in writing, all payments are to be in United States dollars.
V. DELIVERY. TRANSFER OF TITLE AND RISK
5.1. Unless otherwise agreed in writing, all deliveries are made “Ex-Work Origin” (Incoterms 2010 as amended). Seller agrees to properly pack all Products for shipment. The shipper will be selected by Seller.
5.2. Seller’s written confirmation/acceptance (including by e-mail) of the Buyer’s purchase order shall be authoritative for delivery time, mode, quantity and price. Seller may deliver products in one or more consignments and invoice each consignment separately. Seller’s delivery dates are estimates only and Seller is not liable for delays in delivery, delivery of Products in advance to the date quoted for delivery, and time for delivery is not of the essence.
5.3. Seller shall not be liable for failure to perform due to causes beyond the reasonable control of the Seller, nor shall the carrier/shipper be deemed an agent of the Seller. A delayed delivery of any part of an accepted order does not entitle Buyer to cancel other deliveries.
5.4. Title and risk of loss or damage pass to the Buyer at the Seller’s door of warehouse. All transportation costs and risks are assumed by the Buyer.
VI. ACCEPTANCE AND RETURNS
6.1 Shipments will be deemed to have been accepted by Buyer upon delivery of the said shipments to Buyer unless rejected upon receipt. Buyer shall perform all inspections and tests Buyer deems necessary as promptly as possible but in no event later than 14 days after delivery of product, at which time Buyer will be deemed to have irrevocably accepted the Products. Any discrepancy in shipment quantity must be reported at the time of delivery.
6.2. To obtain a return authorization number (“RMA”) Buyer should contact Seller. RMAs are valid for a limited period of time.
6.3. Any product returned by Buyer due to Buyer’s error may be subject to a restocking charge equivalent to 25% of the value of such Product as specified in Seller’s invoice to Buyer.
VII. LIMITED WARRANTY
9.1. Except as specified below, Products sold hereunder shall be free from defects in materials and workmanship and shall conform to Seller’s published specifications or other specifications accepted in writing by Seller for a period of two (2) years from the date of shipment of the products. The foregoing warranty does not apply to any products which have been subject to misuse, neglect, accident or modification or which have been soldered or altered such that they are not capable of being tested under normal test conditions. Seller shall make the final determination as to whether its products are defective.
9.2. Seller’s sole obligation for products failing to comply with this warranty shall be, at its option, to either repair or replace where, within fourteen (14) days of the expiration of the warranty period, (i) Seller has received written notice of any nonconformity; (ii) after Seller’s written authorization, Buyer has returned the nonconforming product to Seller; and (iii) Seller has determined that the product is nonconforming and that such nonconformity is not the result of improper installation, repair or other misuse.
THE FOREGOING WARRANTY AND REMEDIES ARE EXCLUSIVE AND MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. SELLER WILL NOT ASSUME OR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH ITS PRODUCTS.
VIII. LIMITED LIABILITY
10.1. Buyer shall not be entitled to, and Seller shall not be liable for, loss of profits or revenue, promotional or manufacturing expenses, overheads, business interruption cost, loss of data, removal or installation costs, injury to reputation or loss of buyers, punitive damages, IPR infringement, loss of contracts or orders or any indirect, special, incidental or consequential damages of any nature.
10.2. To the extent permitted by law, Buyer’s recovery from Seller for any claim shall not exceed the purchase price paid for the affected products irrespective of the nature of the claim whether in contract, tort, warranty, or otherwise.
10.3. Buyer will indemnify, defend and hold Seller harmless from any claims based on:
a) Seller’s compliance with Buyer’s designs, specifications, or instructions,
b) modifications of any products by anyone other than Seller,
c) use in combination with other products.
IX. TECHNICAL ASSISTANCE OR ADVICE
If technical assistance or advice are offered or given to Buyer, such assistance or advice is given free of charge and only as an accommodation to Buyer. Seller shall not be held liable for the content or Buyer’s use of such technical assistance or advice nor shall any statement made by any of Seller’s representatives in connection with the Products or Services constitute a representation or warranty, express or implied.
X. CONFIDENTIAL INFORMATION
Unless otherwise agreed to in writing, Buyer shall retain in strict confidence and, except as otherwise expressly provided in these Terms, not use or disclose to others any and all information received from the Seller, including but not limited to know-how, compilations, processes, plans, blueprints, technical information, new product information, test procedures, product samples, or specifications as well as commercial and other information or data considered confidential in nature, whether communicated in writing or orally (Confidential Information); provided, however, that Confidential Information shall not be deemed to include (a) information that, at the time of disclosure, is in the public domain or becomes part of the public domain by publication or otherwise through no act of the party receiving it, (b) information that Buyer can conclusively establish was in its possession before the time of disclosure to it and was not acquired directly or indirectly from the disclosing party or any of its employees or affiliates, or (c) information that is independently made available as a matter of right by a third party who has not violated a confidential relationship with the Seller.
Buyer represents, covenants, and warrants that it will do nothing that will create any liability on the part of the Seller by reason of Buyer’s activities, other than as set forth in these Terms and Buyer shall indemnify, defend, and hold harmless the Seller from any claim, loss, damage, fine, judgment, cost, or expense (including, without limitation, attorney fees) arising from the negligence of Buyer, Buyer’s agents, employees or representatives in the installation, use, sale or servicing of Seller’s Products or arising from any representation or warranty made by Buyer, its agents, employees or representatives with respect to Seller’s Products that exceed Seller’s limited warranty.
XII. INTELLECTUAL PROPERTY
The Seller shall be the exclusive owner or authorised user of all patent or patent rights, trademarks, trade names, trade dress, and other trade designations, copyrights, and other industrial or intellectual property rights relating in any way to the Products or the Seller and all goodwill developed in connection with the same (Intellectual Property). Buyer may use the Intellectual Property in connection with the personal use of the Products only. If Buyer develops or acquires, directly or indirectly, any right in any of the Intellectual Property, it will immediately assign to the Seller all of its rights in it.
XIII. TRADE DESIGNATIONS
The Products may bear various trademarks, trade names, trade dress, or other trade designations placed on them by the Seller (Trade Designations). Buyer acknowledges that the Seller is the sole and exclusive owner of all rights with respect to Trade Designations and covenants that no Trade Designations shall be (a) removed, modified, concealed, or covered by Buyer or (b) otherwise used without the Seller’s prior written consent. Nothing in this Terms shall be deemed as Seller’s granting any license to Buyer to use Seller’s name and trademarks.
XIV. Purchases may not be resold or exported.
Your purchase is for your own use, not for resale or export. Your purchase may not be sold, leased, or transferred to restricted countries, restricted end users, or for restricted end uses according to U.S. export and sanctions laws.
15.1. Force Major
Seller shall not be liable for any damage or penalty for delay in delivery or for failure to give notice of delay when such delay is due to the elements, acts of god, acts of the Buyer, act of civil or military authority, war, riots, concerted labor action, shortages of materials, or any other causes beyond the reasonable control of the Seller. The anticipated delivery date shall be deemed extended for a period of time equal to the time lost due to any delay excusable under this provision.
15.2. Export Regulations
Buyer agrees to comply fully with all laws and regulations concerning the purchase and sale of products. In particular, Buyer agrees to comply with the Export Administration Regulations of the United States in so far as they apply to the sale of products.
15.3. Assignment and subcontracting
Seller shall be entitled at all times to assign its rights under these Terms (in whole or in part) or to subcontract any part of the work or services to be provided under the contractual relationships between the Seller and Buyer as it deems necessary or desirable.
15.4.1. If any provision of these Terms is found to be invalid or unenforceable under the law, that provision will be limited or eliminated to the minimum extent necessary so that the Terms otherwise will remain in full force and effect and enforceable.
15.4.2. Failure by Seller to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
15.5. Applicable law
Unless otherwise agreed in writing, the terms and conditions contained herein shall be governed by and construed under the laws of the State of Michigan, USA. Any dispute, controversy or claim arising under, out of or relating to this Standard Terms and/or to the Dealership Agreement or the breach thereof shall be settled by arbitration administered by the American Arbitration Association and held at its Detroit Area office in accordance with its Commercial Arbitration Rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
15.6. TERMS UPDATES
Seller may update these Terms from time to time. The Buyers are advised to check the current terms before placing an another order.