I. MAX-GAIN SYSTEMS, INC. STANDARD TERMS AND CONDITIONS
A. SALES POLICY FOR PRODUCTS
1. Wholesale Only
Max-Gain Systems, Inc. sells its offerings of fiberglass, RF connectors and adapters, Mast Parts, Shallow Water Anchor Parts, and Push Pole Parts wholesale to business customers as well as individuals as long as the minimum order size is met.
Prices listed are retail, do not include freight, handling fees, taxes, and/or duties, and are subject to correction or change without notice. Market sensitive commodity products will be priced according to current market conditions. Customer should contact Max-Gain Systems, Inc. by phone or submit an inquiry online at www.mgs4u.com for current pricing. Export orders may be subject to other special pricing. Max-Gain Systems, Inc. reserves the right to accept or reject any order.
3. Sales Tax
Customer is responsible for payment of all applicable state and local taxes, or for providing a valid sales tax exemption certificate in the state of Georgia. When placing an order, customer shall indicate which products are tax exempt.
4. Payment and Credit Terms
Max-Gain Systems, Inc. accepts cash, checks, money orders, bank wire, Visa, MasterCard, Discover, and American Express. Max-Gain Systems does not issue credit, payment terms are immediate and up front when ordering products. All credit extended by Max-Gain Systems, Inc., past, present, and future, and the limits of such credit, is at Max-Gain Systems, Inc.’s sole discretion, and may be reduced or revoked by Max-Gain Systems, Inc. at any time, for any reason. Export orders are subject to special export payment terms and conditions identified in Section III. All payments must be made in U.S. dollars. Max-Gain Systems, Inc. has the right of set-off and deduction for any sums owed by the customer to Max-Gain Systems, Inc. Max-Gain Systems, Inc. reserves the right to increase total debt in order to cover cost of collecting debts.
Customer agrees to assume responsibility for, and customer hereby unconditionally guarantees payment of, as provided herein, all purchases made by customer, its subsidiaries and affiliates. Each of customer’s subsidiaries and affiliates purchasing from Max-Gain Systems, Inc. are jointly and severally liable for purchases with customer, and customer is also acting as agent for such subsidiaries and affiliates.
5. Credit Balance
Customer agrees that any credit balance(s) issued by Max-Gain Systems, Inc. will be applied to customer’s account within one (1) week of its issuance.
B. FREIGHT POLICY
Prices stated are F.O.B. origin, freight prepaid to destination specified in the order. Max-Gain Systems, Inc. charges a shipping and handling fee, (which includes internal handling, packing, and related costs), on each order which is applied at time of order and reflected on customer’s invoice. Receipts for shipping and handling charges will not be furnished. COD shipments are not permitted. Other terms and conditions may apply for other than standard ground delivery (“Other Freight Services”), including without limitation, expedited same day delivery, air freight, freight collect, export orders, hazardous materials, customer’s carrier, shipments outside the contiguous U.S. or other special handling by the carrier. Any charges incurred for Other Freight Services must be paid by customer. Fuel surcharges may be applied. Title and risk of loss pass to customer upon tender of shipment to the carrier. If the product is damaged in transit, customer’s only recourse is to file a claim with the carrier.
C. PRODUCT WARRANTY POLICY
1. SATISFACTION GUARANTEE TO ALL CUSTOMERS
Customer should contact Max-Gain Systems, Inc. if not satisfied with a product for any reason. Max-Gain Systems, Inc. will promptly provide an exchange or refund if the product is returned within 30 days of delivery (if eligible for return), with a 15% restock fee for the goods returned only, in its original packaging and with proof of purchase from Max-Gain Systems, Inc. Items not eligible for return; (i) custom made or fabricated goods (example: custom cut fiberglass), (ii) assembled and/or modified items or out of original packaging, or (iii) items without original packaging.
2. LIMITED WARRANTY FOR BUSINESSES.
A. ALL PRODUCTS SOLD ARE WARRANTED BY MAX-GAIN SYSTEMS, INC. ONLY TO CUSTOMERS FOR: (i) RESALE; OR (ii) USE IN BUSINESS, GOVERNMENT OR ORIGINAL EQUIPMENT MANUFACTURE.
B. MAX-GAIN SYSTEMS, INC. WARRANTS MAST PRODUCTS AGAINST DEFECTS IN MATERIALS AND WORKMANSHIP UNDER NORMAL USE FOR A PERIOD OF ONE (1) YEAR AFTER THE DATE OF PURCHASE FROM MAX-GAIN SYSTEMS, INC., UNLESS OTHERWISE STATED. MAX-GAIN SYSTEMS, INC. WARRANTS NEWLY MANUFACTURED PRODUCTS AGAINST DEFECTS IN MATERIALS AND WORKMANSHIP UNDER NORMAL USE FOR A PERIOD OF THIRTY (30) DAYS AFTER THE DATE OF PURCHASE FROM MAX-GAIN SYSTEMS, INC., UNLESS OTHERWISE STATED. PROVIDED THAT MAX-GAIN SYSTEMS, INC. ACCEPTS THE PRODUCT FOR RETURN DURING THE LIMITED WARRANTY PERIOD, MAX-GAIN SYSTEMS, INC. MAY, AT ITS OPTION: (i) REPAIR; (ii) REPLACE; OR (iii) REFUND THE AMOUNT PAID BY CUSTOMER. MAX-GAIN SYSTEMS, INC. RESERVES THE RIGHT TO INSTRUCT THE CUSTOMER TO RETURN FOR REPAIR, RETURN FOR REFUND, OR KEEP THE PRODUCT, SHIPPING COSTS PREPAID TO RETURN. MAX-GAIN SYSTEMS, INC.’S REPAIR, REPLACEMENT, OR REFUND OF AMOUNTS PAID BY CUSTOMER FOR THE PRODUCT, SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY.
3. WARRANTY DISCLAIMER.AND LIMITATIONS OF LIABILITY TO ALL CUSTOMERS.
EXCEPT AS SET FORTH HEREIN AND WHERE APPLICABLE, NO WARRANTY OR AFFIRMATION OF FACT OR DESCRIPTION, EXPRESS OR IMPLIED, IS MADE OR AUTHORIZED BY MAX-GAIN SYSTEMS, INC.
MAX-GAIN SYSTEMS, INC. DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. MAX-GAIN SYSTEMS, INC. ALSO DISCLAIMS ANY LIABILITY FOR CLAIMS ARISING OUT OF PRODUCT MISUSE, IMPROPER PRODUCT SELECTION, IMPROPER INSTALLATION, PRODUCT MODIFICATION, MISREPAIR OR MISAPPLICATION. MAX-GAIN SYSTEMS, INC. EXPRESSLY DISCLAIMS ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES TO THE EXTENT PERMISSIBLE. MAX-GAIN SYSTEMS, INC.’S LIABILITY IN ALL EVENTS IS LIMITED TO THE PURCHASE PRICE PAID FOR THE PRODUCT THAT GIVES RISE TO ANY LIABILITY.
4. Warranty Product Return.
Before returning any product, customer shall: (i) write or call Max-Gain Systems, Inc.; (ii) in the case of an internet order, contact Max-Gain Systems, Inc. by emailing [email protected] and provide the date, the original invoice number, the stock number, and a description of the defect; or (iii) call Customer Care at 770-973-6251, and provide the date, the original invoice number, the stock number, and a description of the defect. Proof of purchase is required in all cases.
5. Manufacturer’s Warranty.
For information on a specific manufacturer’s warranty, please contact Max-Gain Systems, Inc.’s Customer Care at 770-973-6251.
6. Product Compliance and Suitability.
Jurisdictions have varying laws, codes and regulations governing construction, installation, and/or use of products for a particular purpose. Certain products may not be available for sale in all areas. Max-Gain Systems, Inc. does not guarantee compliance or suitability of the products it sells with any laws, codes or regulations, nor does Max-Gain Systems, Inc. accept responsibility for construction, installation and/or use of a product. It is customer’s responsibility to review the product application and all applicable laws, codes and regulations for each relevant jurisdiction to be sure that the construction, installation, and/or use involving the products are compliant.
7. Cross-Reference Information.
Product cross-reference comparisons or product alternatives that are presented do not imply that products are available or perfectly comparable. CROSS-REFERENCED PRODUCTS OR PRODUCT ALTERNATIVES ARE NOT REPRESENTED OR WARRANTED AS FUNCTIONAL OR PERFORMANCE EQUIVALENTS. Customer shall review all cross-referenced product or product alternative specifications prior to purchase and use to determine suitability of the product for customer’s intended use.
1. Catalog/Website Information.
Max-Gain Systems, Inc. is a distributor of products and information about the products on the Max-Gain Systems, Inc. web site is provided by the manufacturers and/or suppliers. Product depictions on the website are for illustrative purposes only. Possession of, or access to, any Max-Gain Systems, Inc. literature or websites does not constitute the right to purchase products. Max-Gain Systems, Inc. reserves the right to revise publishing errors in its literature or any of its websites. Despite our efforts, occasional pricing errors may occur in the Max-Gain Systems, Inc. literature and websites. Max-Gain Systems, Inc. reserves the right to cancel any and all orders resulting from such pricing errors, even if customer has received an order confirmation from Max-Gain Systems, Inc.
2. Product Substitution.
Products and/or country of origin may be substituted and may not be identical to descriptions and/or images published in the catalog or on the website.
3. Material Safety Data Sheets.
Material Safety Data Sheets (“MSDS”) for OSHA defined hazardous substances are supplied by the manufacturers and/or suppliers. MAX-GAIN SYSTEMS, INC. MAKES NO WARRANTIES AND EXPRESSLY DISCLAIMS ALL LIABILITY TO ANY CUSTOMER OR USER WITH RESPECT TO THE ACCURACY OF THE INFORMATION OR THE SUITABILITY OF THE INFORMATION IN ANY MSDS. CUSTOMER END USER IS SOLELY RESPONSIBLE FOR ANY RELIANCE ON OR USE OF ANY INFORMATION, AND FOR USE OR APPLICATION OF ANY PRODUCT. Send MSDS requests to Max-Gain Systems, Inc., 221 Greencrest Ct., Marietta, GA. 30068, or send email requests to [email protected], or call 770-973-6251.
E. GENERAL TERMS
1. Electronic Data Interchange.
If Max-Gain Systems, Inc. and customer mutually agree to use an Electronic Data Interchange (“EDI”) system to facilitate purchase and sale transactions, customer agrees that it will not contest: (i) any contract of sale resulting from an EDI transaction under the provisions of any law relating to whether agreements must be in writing or signed by the party to be bound thereby; or (ii) the admissibility of copies of EDI records under the business records exception to the hearsay rule, the best evidence rule or any other similar rule, on the basis that such records were not originated or maintained in documentary form. Max-Gain Systems, Inc. and customer will negotiate and agree on technical standards and methods to use in making EDI purchases, and will use reasonable security procedures to protect EDI records from improper access. In the event of a conflict, the business records maintained by Max-Gain Systems, Inc. regarding EDI purchases made by customer shall be deemed to be conclusive.
2. Third Party Payment Provider.
If customer elects to use a third party payment system provider (“Third Party Provider”) and Max-Gain Systems, Inc. is charged fees by the Third Party Provider, Max-Gain Systems, Inc. reserves the right to seek reimbursement from customer for any and all costs paid to the Third Party Provider for the transfer of funds, retrieval of payment detail, or any other purpose from the Third Party Provider.
3. Intellectual Property.
Customer shall have no right, title, or interest in the trade names, trademarks, trade dress, copyrights, patents, domain names, product names, catalogs or any other intellectual property rights (“IP”) reserved by Max-Gain Systems, Inc., or any IP owned by manufacturers and/or suppliers to Max-Gain Systems, Inc. All materials contained in Max-Gain Systems, Inc. literature or on its web sites are subject to the ownership rights of Max-Gain Systems, Inc. and its manufacturers and/or suppliers. Customer shall have no right to copy or use any IP of Max-Gain Systems, Inc. or its manufacturers and/or suppliers without Max-Gain Systems, Inc.’s permission.
4. Independent Contractors.
Max-Gain Systems, Inc. and customer are independent contractors and not principal and agent. Nothing contained in these terms and conditions shall be construed to create a partnership, dealership, reseller, agency, employment or joint venture relationship. Customer does not have the right to bind or otherwise obligate Max-Gain Systems, Inc. in any manner, nor may customer represent to anyone that it has the right to do so.
5. Sourced Product.
Max-Gain Systems, Inc. may procure product not available through Max-Gain Systems, Inc. literature or available on www.mgs4u.com for a customer from other sources (“Sourced Product(s)”). Sourced Product is priced according to current market conditions on a per order basis, and is shipped F.O.B. origin with freight and handling fee paid by Max-Gain Systems, Inc. and charged to customer. All Sourced Product is to be paid UP-FRONT before production of those products. Shipping and handling will be paid prior to shipping of any Sourced Product(s). Sourced Product may not be returned without a return goods authorization issued by Max-Gain Systems, Inc. Max-Gain Systems, Inc., at its sole discretion, may withhold the issuance of such authorization. A restocking fee may apply for any returned Sourced Product. MAX-GAIN SYSTEMS, INC.’S LIMITED WARRANTY TERMS INCLUDED IN THESE TERMS AND CONDITIONS DO NOT APPLY TO SOURCED PRODUCTS. THE PRODUCT WARRANTY PROVIDED BY THE MANUFACTURER AND/OR SUPPLIER OF THE SOURCED PRODUCT WILL BE CUSTOMER’S SOLE REMEDY.
7. Custom Product.
Max-Gain Systems, Inc. may offer products manufactured or products fabricated to customer’s specifications (“Custom Product(s)”). Max-Gain Systems, Inc. is not responsible for verifying or confirming the accuracy of specifications provided by customer to Max-Gain Systems, Inc. for Custom Products. MAX-GAIN SYSTEMS, INC.’S LIMITED WARRANTY TERMS INCLUDED IN THESE TERMS AND CONDITIONS DO NOT APPLY TO CUSTOM PRODUCTS. THE PRODUCT WARRANTY PROVIDED BY THE MANUFACTURER AND/OR SUPPLIER OF THE CUSTOM PRODUCT WILL BE CUSTOMER’S SOLE REMEDY, AND ALL OTHER WARRANTIES ARE DISCLAIMED UNDER SECTION I.C.3 ABOVE. All Custom Products are sold on a “FINAL SALE” basis only, and no cancellations, returns, refunds or credits are allowed. Max-Gain Systems, Inc. retains all correspondence including hand written notes to verify accuracy of initial order for custom products.
All product order cancellations, if not prohibited above, must be approved by Max-Gain Systems, Inc., and may be denied or subject to restocking fees and other charges.
9. Product Return by Business Customers.
Product returns by business customers, if not prohibited above, must be made within thirty (30) days from date of purchase (if eligible), unless otherwise indicated. Business customer should call 770-973-6251 for instructions. Max-Gain Systems, Inc. does not take title to returned products until the item is received by Max-Gain Systems, Inc. at the applicable return location. Returned product must be in original packaging, unused, undamaged, and in saleable condition. Proof of purchase is required in all cases. Product returns may be denied or made subject to restocking fees and other charges by Max-Gain Systems, Inc.
10. Force Majeure.
Max-Gain Systems, Inc. shall not be liable for any delay in, or impairment of, performance resulting in whole or in part from any force majeure event, including but not limited to acts of God, labor disruptions, acts of war, acts of terrorism (whether actual or threatened), governmental decrees or controls, insurrections, epidemics, quarantines, shortages, communication or power failures, fires, accidents, explosions, inability to procure or ship product or obtain permits and licenses, inability to procure supplies or raw materials, severe weather conditions, catastrophic events, or any other circumstance or cause beyond the reasonable control of Max-Gain Systems, Inc. in the conduct of its business.
Customer shall not assign any order, or any interest therein, without the prior written consent of Max-Gain Systems, Inc. Any actual or attempted assignment without Max-Gain Systems, Inc.’s prior written consent shall entitle Max-Gain Systems, Inc. to cancel such order upon notice to customer.
12. No Third Party Benefit.
The provisions stated herein are for the sole benefit of the parties hereto, and confer no rights, benefits or claims upon any person or entity not a party hereto.
13. Waiver, Choice of Law and Venue.
The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent non-performance of any such term or condition by the other party. All transactions shall be governed by the laws of the State of Georgia, excluding its conflict of law rules, and venue shall either be in the state courts in Cobb County, Georgia or the federal courts for the Cobb District of Georgia.
If any portion of these terms and conditions is found to be invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable term shall be severed from these terms and conditions, and the remaining terms and conditions shall be valid and fully enforceable as written.
15. Modification of Terms.
Max-Gain Systems, Inc’s acceptance of any order is subject to customer’s assent to all of the terms and conditions set forth herein. Customer’s assent to these terms and conditions shall be presumed from customer’s receipt of Max-Gain Systems, Inc.’s acknowledgment, or from customer’s acceptance of all or any part of the products ordered. No additions or modifications of Max-Gain Systems, Inc.’s terms and conditions by customer shall be binding upon Max-Gain Systems, Inc., unless agreed to in writing by an authorized representative of Max-Gain Systems, Inc. If a purchase order or other correspondence submitted by customer contains terms or conditions contrary or in addition to the terms and conditions contained herein or in Max-Gain Systems, Inc.’s acknowledgment, Max-Gain Systems, Inc.’s fulfillment of any such purchase order shall not be construed as assent to any of the terms and conditions proposed by customer, and will not constitute a waiver by Max-Gain Systems, Inc. of any of the terms and conditions contained herein or in Max-Gain Systems, Inc.’s acknowledgment.
16. Complete Agreement.
The terms and conditions in: (i) Max-Gain Systems, Inc.’s forms; (ii) acknowledgments; (iii) quotations; (iv) invoices; (v) web sites; (vi) catalogs; and (vii) extension of credit are incorporated herein by reference, and constitute the entire and exclusive agreement between customer and Max-Gain Systems, Inc.
II. ADDITIONAL TERMS AND CONDITIONS RELATED TO THE PERFORMANCE OF SERVICES BY MAX-GAIN SYSTEMS, INC OR OTHER PROVIDERS
IN ADDITION TO THE STANDARD TERMS AND CONDITIONS IN SECTION I, PERFORMANCE OF SERVICES WILL BE GOVERNED BY THE FOLLOWING ADDITIONAL TERMS AND CONDITIONS (“ADDITIONAL SERVICE TERMS”). SERVICES MAY BE PERFORMED BY: (i) MAX-GAIN SYSTEMS, INC., ITS SUBSIDIARIES, AFFILIATES OR SUBCONTRACTORS (“MAX-GAIN SYSTEMS, INC.”); OR THIRD-PARTY SERVICE PROVIDERS ENGAGED BY MAX-GAIN SYSTEMS, INC. (“THIRD-PARTY PROVIDERS”). FOR PURPOSES OF THIS SECTION II, “SERVICE PROVIDER” REFERS TO EITHER MAX-GAIN SYSTEMS, INC. OR A THIRD-PARTY PROVIDER DEPENDING UPON WHICH OF THEM IS PERFORMING SERVICES, AND “SERVICE PROVIDER PERSONNEL” REFERS TO PERSONNEL OF SUCH SERVICE PROVIDER.
THE TERMS AND CONDITIONS CONTAINED IN THIS SECTION II ARE EXTENDED SOLELY BY THE SPECIFIC SERVICE PROVIDER PERFORMING SERVICES, AND ANY OBLIGATIONS CONTAINED IN THIS SECTION II DO NOT APPLY TO ANY OTHER SERVICE PROVIDER REFERENCED IN THE FOREGOING PARAGRAPH. A THIRD-PARTY PROVIDER MAY REQUIRE CUSTOMER TO EXECUTE ADDITIONAL CONTRACTUAL DOCUMENTS PRIOR TO THE PERFORMANCE OF SERVICES, WHICH DOCUMENTS MAY MODIFY THE TERMS BETWEEN CUSTOMER AND SUCH THIRD-PARTY PROVIDER AS SET FORTH IN THIS SECTION II.
IN THE EVENT OF A CONFLICT BETWEEN THE STANDARD TERMS AND CONDITIONS IN SECTION I AND THE ADDITIONAL SERVICE TERMS IN SECTION II, THE ADDITIONAL SERVICE TERMS IN SECTION II SHALL PREVAIL FOR THE PERFORMANCE OF SERVICES.
1. LIMITED SERVICES WARRANTY.
ALL SERVICES WILL (i) BE PERFORMED IN A WORKMANLIKE MANNER; (ii) CONFORM TO THE SPECIFICATIONS (IF ANY) PROVIDED BY THE SERVICE PROVIDER IN A STATEMENT OF WORK; AND (iii) BE WARRANTED FOR A PERIOD OF THIRTY (30) DAYS AFTER PERFORMANCE OF SERVICES (“LIMITED WARRANTY PERIOD”). IF SERVICES ARE IMPROPERLY PERFORMED AND CUSTOMER NOTIFIES THE SERVICE PROVIDER OF THE IMPROPERLY PERFORMED SERVICE DURING THE LIMITED WARRANTY PERIOD, THEN THE SERVICE PROVIDER WILL RE-PERFORM THOSE SERVICES, IN WHOLE OR IN PART, AS NECESSARY TO CURE THE PARTICULAR BREACH, OR AT THE SERVICE PROVIDER’S SOLE OPTION, REFUND THE AMOUNT PAID BY CUSTOMER FOR THE SERVICES DIRECTLY ATTRIBUTABLE TO THE PARTICULAR BREACH. THE SERVICE PROVIDER’S RE-PERFORMANCE OR REFUND OF AMOUNTS PAID BY CUSTOMER FOR THE SERVICE DIRECTLY ATTRIBUTABLE TO THE PARTICULAR BREACH SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY.
2. WARRANTY DISCLAIMER AND WAIVER FOR SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION II FOR SERVICES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND THE SERVICE PROVIDER DISCLAIMS, AND CUSTOMER WAIVES, ALL OTHER WARRANTIES FOR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. THE WARRANTIES SET FORTH IN THIS SECTION II ARE EXPRESSLY CONDITIONED UPON THE USE OF THE SERVICES FOR THEIR INTENDED PURPOSE AND SHALL NOT APPLY TO SERVICES WHICH HAVE BEEN SUBJECT TO MODIFICATION BY CUSTOMER OR ANY THIRD PARTY.
3. LIMITATION OF LIABILITY.
MAX-GAIN SYSTEMS, INC. AND THIRD-PARTY PROVIDERS EXPRESSLY DISCLAIM ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES IN THE PERFORMANCE OF SERVICES. THE LIABILITY OF MAX-GAIN SYSTEMS, INC. OR ANY THIRD-PARTY PROVIDER PERFORMING SERVICES IN ALL CIRCUMSTANCES IS LIMITED TO, AND SHALL NOT EXCEED, THE PURCHASE PRICE FOR THE PERFORMANCE OF THE PORTION OF SERVICES THAT GIVES RISE TO ANY PARTICULAR LIABILITY.
4. Payment and Credit Terms.
Except as otherwise agreed to by the parties, customer will be invoiced upon completion of services. Payment terms are immediate payment before goods are returned from the date of completion of services. All other payment terms are as set forth in Section I.A.4.
Customer shall defend, indemnify and hold harmless Max-Gain Systems, Inc., Third-Party Providers, and their respective officers, directors, employees, subcontractors and agents (each individually, an “Indemnified Party”) from and against any and all any claims, suits, liabilities, damages, settlements, charges, taxes and any other losses or expenses (including reasonable attorneys’ fees) (collectively “Liabilities”) for physical injury to, illness or death of, any third party regardless of status and damage to or destruction of any tangible property which the third party may sustain or incur, to the extent such Liabilities relate to the services; except for such Liabilities relating to or arising out of a final judgment of gross negligence or willful misconduct of the Indemnified Party. In any action, suit or proceeding brought against an Indemnified Party by reason of any such claim as specified above, customer shall resist and defend such action, suit or proceeding by counsel of its choice, at the sole expense of customer, provided that (i) the Indemnified Party notifies customer promptly in writing of the claim; (ii) customer’s counsel does not give rise to a conflict of interest with respect to the Indemnified Party; (iii) customer has the sole control of the defense and all related settlement negotiation but shall keep the Indemnified Party reasonably informed of status; and (iv) the Indemnified Party provides customer with all reasonably necessary assistance, information, and authority to perform the foregoing at customer’s expense.
6. No Third Party Reliance.
Customer acknowledges and agrees that any advice, recommendation, information or work product provided to customer by Service Provider in connection with the services is for the sole use of customer and may not be relied upon by any third party; and customer is prohibited from making such advice, recommendation, information or work product available to any third party without prior written consent from Max-Gain Systems, Inc.
III. ADDITIONAL TERMS AND CONDITIONS RELATED TO EXPORT OF MAX-GAIN SYSTEMS, INC. PRODUCTS
IN ADDITION TO THE STANDARD TERMS AND CONDITIONS IN SECTION I, EXPORT SALES OF MAX-GAIN SYSTEMS, INC. PRODUCTS WILL BE GOVERNED BY THE FOLLOWING ADDITIONAL TERMS AND CONDITIONS RELATED TO EXPORT OF MAX-GAIN SYSTEMS, INC. PRODUCTS (“ADDITIONAL EXPORT TERMS”). IN THE EVENT OF A CONFLICT BETWEEN MAX-GAIN SYSTEMS, INC.’S STANDARD TERMS AND CONDITIONS IN SECTION I AND THE ADDITIONAL EXPORT TERMS IN SECTION III, THE ADDITIONAL TERMS IN SECTION III SHALL PREVAIL FOR EXPORT SALES OF MAX-GAIN SYSTEMS, INC. PRODUCTS.
1. Order Acceptance.
Customer acknowledges that no order shall be deemed accepted unless and until it is verified and accepted by Max-Gain Systems, Inc, or any of its U.S. affiliates and divisions, at a continental U.S. facility or at any of its websites. Customer further consents that submission of its order shall subject customer to the jurisdiction of the federal courts of the U.S. and of the State where acceptance occurred in the U.S.
2. Sales Tax and Duties, Import Fees.
Max-Gain Systems, Inc. is required to charge federal, state, local tax, applicable duties, and import fees on products, or for providing a valid exemption certificate. Customer assumes responsibility for, and unconditionally guarantees payment or reimbursement of, all applicable taxes, fees, licenses, import duties, and expenses as may be applicable. When placing an order, customer shall indicate which products are tax exempt.
3. Payment and Credit Terms.
Payment terms are immediate and in full before product ships. All other payment terms are as set forth in Section I.A.4.
4. Shipping Charges and Freight Policy.
All Max-Gain Systems, Inc., unless otherwise stated and agreed, default shipping term is FOB Max-Gain Systems, Inc. shipping location. Freight is prepaid from any Max-Gain Systems, Inc. facility or freight collect using customer’s account. Customer shall be responsible for obtaining insurance. At Max-Gain Systems, Inc.’s option, this freight policy may be subject to special terms and conditions for any export orders. If any item is backordered that qualifies for freight prepayment, that item will be shipped prepaid as customer’s exclusive remedy. Title and risk of loss for products shall transfer to the customer once picked up.
5. Export Controls and Related Regulations.
Customer represents and warrants that it is not designated on, or associated with, any party designated on any of the U.S. government restricted parties lists, including without limitation, the U.S. Commerce Department Bureau of Industry and Security (“BIS”) Denied Persons List; Entity List or Unverified List; the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”) Specially Designated Nationals and Blocked Persons List; or the U.S. State Department Directorate of Defense Trade Controls (“DDTC”) Debarred Parties List. Customer shall comply with all applicable U.S. economic sanctions and export control laws and regulations, including without limitation, the regulations administered by OFAC, the Export Administration Regulations administered by BIS, and the International Traffic in Arms Regulations administered by DDTC.
6. Foreign Principal Party in Interest; Freight Forwarder and Documentation.
It is specifically agreed that customer shall be the foreign principal party in interest and/or that its freight forwarder shall act as customer’s agent in such capacity for purposes of the Foreign Trade Regulations or other regulatory purposes, and customer and its freight forwarder are responsible for all routed export transactions documentation, including but not limited to the filing of the required Electronic Export Information/Automated Export System records. At Max-Gain Systems, Inc.’s request, customer or its freight forwarder shall provide copies of any export, shipping, or import documentation prepared by customer or its freight forwarder related to sales to customer by Max-Gain Systems, Inc.
7. Country of Importation and Anti-diversion.
Customer represents that it is purchasing products from the U.S. and importing them to the country specified in the customer and Max-Gain Systems, Inc. documentation. Customer agrees that the products will be shipped to the specified destination in compliance with the laws of such destination and the U.S., and that the products will not be directly or indirectly sold, exported, transferred, assigned, used, or otherwise disposed of in a manner which may result in any non-compliance with applicable U.S. laws and regulations relating to the product purchased by customer. Any commodities, technology and software will be exported from the U.S. in accordance with the U.S. Export Administration Regulations and other applicable laws or regulations. Diversion contrary to U.S. law is prohibited. If requested by Max-Gain Systems, Inc., customer shall provide documentation satisfactory to Max-Gain Systems, Inc. verifying delivery at the designated country, the identity of end users ordering products from customer and the terms and conditions upon which such end users request products to be supplied. Customer further agrees to inform Max-Gain Systems, Inc. at the time of order of any North American Free Trade Agreement or other special documentation, packaging or product marking or labeling, but Max-Gain Systems, Inc. shall not be responsible for providing any such documentation, packaging, marking or labeling other than such documents that are necessary under U.S. export laws and regulations for export, unless Max-Gain Systems, Inc. expressly agrees to do so.
8. Permits, Export, and Import Licenses.
Customer shall be responsible for obtaining any licenses or other official authorizations that may be required by the country of importation and/or under the Export Administration Regulations, International Traffic in Arms Regulations, Toxic Substances Control Act, or other applicable laws or regulations.
9. Governing Law; Limitations.
The rights and obligations of the parties under these terms and conditions shall not be governed by the provisions of the 1980 United Nations Convention of Contracts for the International Sale of Goods or the United Nations Convention on the Limitation Period in the International Sale of Goods. Rather, these terms and conditions shall be governed by the laws of the State of Georgia, U.S., including its provisions of the Uniform Commercial Code, but excluding its conflict of law rules. Notwithstanding the foregoing, any legal action by customer with respect to any transaction must be commenced within one (1) year after the cause of action has arisen.