WE GLADLY ACCEPT YOUR OFFER, BUT THIS ACCEPTANCE IS EXPRESSLY MADE CONDITIONAL ON ASSENT TO OUR ADDITIONAL AND DIFFERENT TERMS AND CONDITIONS.
1. ACCEPTANCE
The following are the terms and conditions (“Terms and Conditions”) for the sale of products (“Products”) by Fansco, Inc. (“Fansco”) to Fansco’s customers (“Customer”). These Terms and Conditions shall apply to the exclusion of all other terms referred to in any purchase order, acknowledgment, confirmation or any other documentation issued by either party, unless agreed in writing and signed by an authorized officer of Fansco; no Fansco employee or agent has the right to modify these Terms and Conditions verbally. If a contract is not earlier formed by mutual agreement in writing, acceptance of any Products shall be deemed acceptance of the Terms and Conditions stated herein. Fansco reserves the right to amend these Terms and Conditions at any time. The most current version of these Terms and Conditions can be found at www.fansco.com.
Customer may order software from or through Fansco. Software may be provided by third parties, including support and maintenance related thereto. All such software and related services are offered by Fansco as a distributor or sales agent. The software is provided under the terms of the license attached to it or linked thereto, such as any end user license agreement contained within the packaging of any software or end user license agreement (“EULA”) and is between Customer and such third party licensor. Customer is required to accept the EULA before downloading any software or before using any software delivered on physical media. If no such EULA is attached, the software is provided “AS IS.” Customer agrees to comply with the terms of such EULA with respect to the software. With respect to such software, Customer shall consider the third party to be the contracting party and such terms shall only be between Customer and such third party. Customer shall solely look to such third party with respect to such software. Fansco is not liable for any losses or damages which may occur from the use of any such software and the Customer hereby releases Fansco from any and all claims arising from or related to the purchase or provision of such software. Notwithstanding the terms herein, software is licensed, and not sold. BY PLACING AN ORDER FOR SOFTWARE, CUSTOMER AGREES TO USE SUCH SOFTWARE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE APPLICABLE EULA FOR THAT SOFTWARE.
2. BUSINESS CUSTOMERS.
Fansco is a business to business supplier. Its catalog and any specialogs and other product brochures produced by Fansco are intended for use by business customers and not consumers. By ordering, the Customer represents and warrants that Customer is acquiring the Products on behalf of a business and not as a consumer.
3. ORDERS.
Orders will be initiated by Customer issuing a purchase order to Fansco. Orders must identify the Products, unit quantities, part numbers, descriptions, applicable prices and requested delivery dates. Orders are subject to Fansco’s acceptance. Fansco reserves the right to limit quantities and to refuse to deal with any person.
4. PRICES.
Orders are billed at the prices (in United States dollars) in effect at the time of shipment. The catalog reflects the latest pricing information available at the time of printing, which is subject to change without notice. Non-standard Products will be sold at the prices set out in the relevant quotation supplied by Fansco. If Customer does not purchase the quantity upon which quantity prices are based, Customer will pay the non-discounted price for the quantity actually purchased and/or a cancellation fee. Prices for any rescheduled deliveries may be increased by Fansco in the event of an increase in Fansco’s prices or costs or causes beyond Fansco’s reasonable control.
Prices do not include federal, state and local sale, use, excise and similar taxes that apply to Products, which Customer will also pay at the applicable rate unless an original signed tax exemption certificate is received by Fansco.
5. TERMS OF PAYMENT.
If Fansco has not granted credit to Customer, payment terms are cash with order. There is a $25.00 service charge on all returned checks.
In the case of any software provided by Fansco electronically for download by Customer, following receipt of payment in cleared funds in full by Fansco (or following Customer’s purchase of any software pursuant to the terms of an existing credit agreement between Customer and Fansco), and subject to Fansco’s completion of any necessary credit, anti-fraud or compliance checks or procedures, Fansco will send to Customer’s email address (as specified by Customer at the time the order was placed) an email containing (i) a hyperlink by which the software can be accessed and (ii) instructions enabling Customer to activate the Software.
If credit has been granted, payment is net 30 days from date of invoice. All payments must be made without set-off or deduction. Retainage shall not apply. Orders are subject to credit approval by Fansco, which may in its sole discretion at any time change the terms of Customer’s credit or require advance payment or payment by official bank check.
Customer expressly represents it is solvent at the time it places any purchase order with Fansco. If Fansco reasonably believes that Customer’s ability to make payments is impaired, Fansco may cancel any order or remaining balance thereof, and Customer will remain liable to pay Fansco for Products already shipped. Customer will submit such financial information as Fansco may reasonably require for determination of credit terms. Checks are accepted subject to collection and the date of collection will be deemed the date of payment. Any payment received from Customer may be applied by Fansco against any obligation owing by Customer to Fansco under this or any other contract, regardless of any statement appearing on or referring to such payment, without discharging Customer’s liability for any additional amounts owing by Customer to Fansco. The acceptance by Fansco of such payment will not constitute a waiver of Fansco’s right to pursue the collection of any remaining balance. If Customer fails to make payment when due, without prejudice to any other right or remedy, (i) overdue sums will bear interest to date of payment at the annual rate of 18% or such lower rate as may be the maximum permitted by law; and (ii) Fansco will be entitled to reimbursement for all costs of collection and attorneys’ fees. Credit cards accepted are MasterCard, Visa, American Express and Discover. Customer acknowledges that transactions to which these terms relate are commercial transactions. To the extent not contrary to applicable law, Customer (i) waives any available homestead exemption, (ii) irrevocably authorizes Fansco to appoint a representative to appear in a court of competent jurisdiction to confess a judgment without process in Customer’s favor for such amount that remains unpaid, and (iii) consents to immediate execution upon any such judgment. Customer voluntarily and knowingly waives its right to notice, demand, presentment, protest and any hearing to which it may be entitled under any state or federal law relating to any right or remedy (including prejudgment remedies) that Fansco may elect to use or of which it may avail itself.
IMPORTANT NOTICE: A CONFESSION OF JUDGMENT PROVISION AND OTHER WAIVERS CONTAINED HEREIN CONSTITUE A WAIVER OF IMPORTANT RIGHTS YOU MAY HAVE. IF YOU DO NOT PAY ON TIME, THESE WAIVERS ALLOW Fansco TO OBTAIN A JUDGMENT AGAINST YOU WITHOUT FURTHER NOTICE OR YOUR PRIOR KNOWLEDGE. YOU ARE GIVING UP YOUR RIGHT TO NOTICE AND TRIAL. Fansco MAY OBTAIN JUDICIAL REMEDIES TO COLLECT AMOUNTS DUE REGARDLESS OF ANY CLAIMS YOU MAY HAVE (INCLUDING, WITHOUT LIMITATION, CLAIMS FOR RETURNED OR FAULTY PRODUCTS, FAILURE BY Fansco TO COMPLY WITH THIS AGREEMENT OR ANY OTHER CAUSE).
6. DELIVERY AND TITLE.
All shipments by Fansco are FOB point of shipment from Fansco’s facility and the amount of all shipment charges shall be paid to Fansco by Customer in addition to the purchase price of the Products. Selection of the carrier and delivery route will be made by Fansco unless specifically designated by Customer. Fansco will aim to initiate shipment and deliver the Products as close as possible to Customer’s requested delivery date(s). Customer acknowledges that shipment and delivery dates provided by Fansco are estimates only and that Fansco will not be liable for failure to achieve such dates. For the avoidance of doubt delivery of Products within 30 days of the requested delivery date shall constitute timely delivery. Delivery of a quantity within ±10% of the quantity ordered will constitute full delivery. Fansco reserves the right to make deliveries in installments. Delay in delivery of one installment will not entitle Customer to cancel any other installment(s).
Subject to Fansco’s right of stoppage in transit, delivery to a carrier will constitute delivery to Customer, and risk of loss of or damage to the Products will pass to Customer at this point. Title to the Products shall remain with Fansco until payment in full for the Products by Customer. Products invoiced and held by Fansco at Customer’s request will be held at Customer’s risk and expense. Title to software shall remain with the applicable licensor(s), and Customer’s rights therein are contained in the EULA between Customer and such licensor(s).
7. CANCELLATIONS, RETURNS.
Fansco may cancel orders which have been accepted by giving notice of such cancellation to Customer by telephone, email or facsimile within 60 days of receipt of such order. Customer may, without charge, cancel an order for standard Products provided the order is scheduled for shipment by Fansco more than 60 days after Fansco receives written notice of cancellation from Customer. Customer may only cancel an order for standard Products scheduled for shipment by Fansco within 60 days after Fansco receives written notice of cancellation if accepted by Fansco in its sole discretion, which acceptance may be subject to Customer accepting a cancellation fee determined by Fansco. Customer may only reschedule an order if accepted by Fansco in its sole discretion. Orders may not be cancelled or rescheduled after delivery by Fansco to the carrier. Customer may not cancel orders for non-standard Products. Non-standard products include, without limitation, products which are special orders, products which do not appear in the catalog, products not customarily in stock, value-added products, products to be assembled from kit form, opened software, and products identified as otherwise non-cancelable and non-returnable (“NCNR”).
Customer is deemed to have accepted the Products unless written notice of rejection is received by Fansco within three days after delivery.
The following provisions apply to the return of Products to Fansco (except where Section 9 applies):
Fansco will advise Customer at the time of order placement whether any Product ordered is NCNR. NCNR Products may not be returned. Returns are limited to the previous year’s volume of purchases of any given Product.
Fansco will accept Product returns only within 30 days of the date of delivery to Customer.
Authorization must be obtained from Fansco prior to returning any Product by submitting a return material authorization (RMA) request to the Customer Returns desk. Please allow 24 hours for each request to be processed.
If approved, Fansco will issue Customer an RMA number. No return of Product will be accepted without a clearly visible RMA number marked on each carton.
Return freight charges must be prepaid by Customer.
Returned Product must be in original shipping cartons with all packaging materials included.
Product must be in re-sellable condition. Customer will be advised of disposition or credit (whichever applies) after inspection of Product.
Product returned due to Customer error may be subject to restocking fee.
Fansco will not be responsible for returned Product lost in transit.
8. COUNTERFEIT PRODUCT PREVENTION CLAUSE
Only products originally shipped from Fansco or from a supplier at Fansco’s direction (drop-ship) will be returned to Fansco. All others will be promptly quarantined and disposed of or returned to Customer. By a Customer returning products to Fansco, Customer certifies that the products were purchased from Fansco and there has been no substitution in whole or part of same product from another supplier, distributor or other such source of the product. The return should be in the original packaging (manufacturer or Fansco), in unused condition (except defective). Electrostatic sensitive (“ESD’) products should not be opened except under controlled conditions.
9. LIMITED WARRANTY.
Products are sold by Fansco with such warranties as may be extended by the manufacturer of the Product(s), and there are no warranties for value added services, services bundled with the Products, or other services provided by Fansco. COPIES OF THE MANUFACTURERS’ WARRANTIES ARE AVAILABLE PRIOR TO THE PURCHASE OF PRODUCTS BY CONTACTING Fansco. CUSTOMER IS RESPONSIBLE FOR INSTALLATION AND USE IN ACCORDANCE WITH MANUFACTURERS’ INSTRUCTIONS AND Fansco SHALL NOT BE RESPONSIBLE FOR CUSTOMER’S IMPROPER SELECTION OF A PRODUCT FOR A PARTICULAR APPLICATION OR OTHERWISE. No warranty will apply if the Products are in any way altered or modified after delivery by Fansco. If Fansco breaches this warranty, Customer’s remedy is limited to (at Fansco’s election) (1) refund of Customer’s purchase price for such Products (without interest), (2) repair of such Products, or (3) replacement of such Products; provided that such Products must be returned to Fansco, along with acceptable evidence of purchase, within 20 days from date of delivery, transportation charges prepaid. No warranty will apply if the Product has been subject to misuse, static discharge, neglect, accident or modification, or has been soldered.
Customer acknowledges and agrees that no Fansco employee is authorized to make any representation or warranty on behalf of Fansco that is not in this Agreement.
WITH RESPECT TO ANY SOFTWARE AND OTHER PRODUCTS MADE AVAILABLE, CUSTOMER ACKNOWLEDGES AND AGREES THAT Fansco IS NOT THE MANUFACTURER THEREOF AND THE ONLY WARRANTIES OFFERED ARE THOSE OF THE MANUFACTURER, NOT Fansco. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER’S WARRANTY. In purchasing the software, Customer is relying on the manufacturer’s or licensor’s specifications only and is not relying on any descriptions representing the software that may be provided by Fansco. Support and/or maintenance, if any, for such software shall be provided by the manufacturer or licensor, unless Fansco expressly agrees to provide such support and/or maintenance in the software purchase order. Customer further hereby expressly waives any claim that it may have against Fansco based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights with respect to any such software product. In addition, Customer hereby also waives any right to indemnification from Fansco against any such claim made against Customer by a third party.
SAVE AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, ALL IMPLIED WARRANTIES, TERMS AND CONDITIONS (WHETHER STATUTORY OR OTHERWISE) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. IN PARTICULAR, Fansco MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OR RESPECTING INFRINGEMENT. THE PARTIES AGREE THAT WITHOUT THIS LIMITATION OF LIABILITY Fansco WOULD NOT HAVE AGREED TO THE PRICE OR TERMS AND CONDITIONS OF THIS AGREEMENT.
10. LIMITATION OF LIABILITIES.
CUSTOMER SHALL NOT BE ENTITLED TO, AND Fansco SHALL NOT BE LIABLE FOR, LOSS OF PROFIT, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEADS, BUSINESS INTERRUPTION COSTS, LOSS OF DATA, REMOVAL OR REINSTALLATION COSTS, INJURY TO REPUTATION OR LOSS OF CUSTOMERS, PUNITIVE DAMAGES, IPR INFRINGEMENT, LOSS OF CONTRACTS OR ORDERS OR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE. CUSTOMER’S RECOVERY FROM Fansco 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. OTHER THAN THOSE WARRANTIES IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER APPLICABLE LAW, THE TERM OF ANY IMPLIED WARRANTIES THAT CANNOT BE DISCLAIMED ARE LIMITED AS SET OUT IN SECTION 23 (DISPUTE RESOLUTION AND LIMITATION ON ACTIONS) HEREOF.
SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU BUT IN ANY EVENT SHALL APPLY TO THE MAXIMUM EXTENT ALLOWED BY LAW.
IF FOR ANY REASON THE FOREGOING LIMITATIONS ARE FOUND BY AN ARBITRATION PANEL OR COURT OF COMPETENT JURISDICTION TO BE INVALID OR INAPPLICABLE UNDER ANY APPLICABLE LAW, CUSTOMER AGREES THAT Fansco’S TOTAL LIABLITLY FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION OF ANY KIND OR NATURE SHALL BE LIMITED TO ACTUAL DAMAGES WITHOUT REGARD TO ANY PUNITIVE OR EXEMPLARY DAMAGES PROVIDED BY ANY SUCH APPLICABLE LAW.
California Residents — WARNING: Some of Fansco’s Products contain chemicals known to the State of California to cause cancer, birth defects, or reproductive toxicity under certain conditions or at certain levels. Fansco’s suppliers are responsible for proper identification and labeling of these Products.
11. PUBLISHED INFORMATION.
Fansco makes every effort to ensure the accuracy of the information published in its catalogs. However, Fansco makes no representations about the information presented, which is provided “as-is” without warranty of any kind. Any specification sheets provided to Customer are produced by the manufacturer or transcribed from information provided by the manufacturer. Product specifications and availability are subject to change without prior notice.
12. Fansco CORPORATE RoHS COMPLIANCE AND LEAD-FREE POLICY
It is the policy of Fansco to provide RoHS Compliant and/or lead free parts as available from our suppliers. The RoHS compliance status of Fansco provided parts is available at www.fansco.com. When a part is identified as RoHS Compliant, it means that, based on information provided by our suppliers, the product does not contain the substance restricted by the European Community Directive (2011/65/EU) on the Restriction of the use of certain Hazardous Substances, (“RoHS Directive”), at levels in excess of the anticipated maximum concentration values or the existence of the restricted substances in the product at levels in excess of those concentrations is allowed as one of the particular applications listed in the Annex to the RoHS Directive. Fansco performs no testing of product and relies solely on the manufacturer of the product for identification of RoHS Compliance and for absence of lead. Furthermore, Fansco makes no warranty, certification or declaration of compliance concerning said products. Product is advertised or offered as RoHS Compliant or Lead-Free only after sufficient evidence is received from the component manufacturer; and any inventory, either in a bin or on order, has been determined to be RoHS compliant and/or Lead Free. Any relevant evidence will be filed and maintained for at least four years from the date of receipt. Fansco defines the term “RoHS” as supplier declared compliance to all restricted hazardous substance regulations under the End of Life Vehicle (“ELV Directive”), Waste Electrical and Electronic Equipment (“WEEE Directive”) or RoHS European Union (“EU”) directives, regulations or laws. Fansco defines the term “Lead Free” as pertaining to any product that has been declared by a Supplier to be “Lead Free”. All statements by Fansco of RoHS compliance are based on producer documentation.
13. Fansco CORPORATE WEEE POLICY
Fansco is not registered as a “producer” in the European Union, and does not provide a WEEE recycling program within the EU. A very small number of products that Fansco sells are subject to the WEEE Directive. Therefore, it is the policy of Fansco not to export or place on the market, EEE classified products (as defined by EU Directive 2002/96/EC) to Customers within the European Union member countries.
14. Fansco COUNTRY OF ORIGIN
Fansco maintains Country of Origin information on all products in its inventory. This information is provided to customers on product labels and product shipping documents. This information is based on manufacturer-provided information according to US Customs Regulations. Our manufacturers do not provide Fansco with the country of origin of each raw material or subcomponent that is incorporated into the manufacturer’s final product.
15. LIMITATIONS OF USE.
PRODUCTS SOLD BY Fansco ARE NOT RECOMMENDED OR AUTHORIZED FOR USE IN LIFE SUPPORT, SURGICAL IMPLANTATION, NUCLEAR OR AIRCRAFT APPLICATIONS OR FOR ANY USE OR APPLICATION IN WHICH THE FAILURE OF A SINGLE COMPONENT COULD CAUSE SUBSTANTIAL HARM TO PERSONS OR PROPERTY. Customer agrees that using or selling Products for use in such applications is done at its own risk, and agrees that Fansco and the manufacturer of the Products are not liable for any claim or damage arising from such use. Customer agrees to indemnify fully, defend and hold harmless Fansco and the manufacturer of the Products from and against any and all claims, damages, loss, cost, expense or liability arising out of or in connection with the use or performance of Products in such applications. Use of software will be subject to the terms of any accompanying end user license. BEFORE CUSTOMER USES OR INSTALLS ELECTRICAL PRODUCTS, IT IS CUSTOMER’S RESPONSIBILITY TO CONSULT THE NATIONAL ELECTRIC CODE AND ANY PERTINENT LOCAL, STATE OR NATIONAL CODES, RULES OR REGULATIONS FOR APPROVED INSTALLATION PROCEDURES AND PRECAUTIONS. CUSTOMER SHALL INDEMNIFY, DEFEND AND HOLD Fansco HARMLESS FROM ANY CLAIMS BROUGHT BY ANY PARTY REGARDING PRODUCTS SUPPLIED BY Fansco AND INCORPORATED INTO THE CUSTOMER’S PRODUCT.
16. STATEMENTS AND ADVICE.
If statements or advice (technical or otherwise, and whether or not provided by Fansco’s technical support group) are offered or given to Customer, such statements or advice will be deemed to be given as an accommodation to Customer and without charge and Fansco will have no responsibilities or liabilities whatsoever for the content or use of such statements or advice.
17. PATENTS INFRINGEMENTS.
Fansco makes no representations that any Products sold to Customer are free of the rightful claim of any third person by way of infringement, or of infringement of patent or trademark or the like and disclaims any warranty against infringement with respect to any Products. Customer agrees to look solely to the manufacturer or licensor of the Products with respect to any claim of infringement. Furthermore, Customer agrees to protect, defend, indemnify and hold harmless Fansco from all sums, costs, expenses and attorney fees which Fansco may incur or be obligated to pay as a result of any and all claims and demands, causes of action or judgments arising out of or relating to any use, modification or enhancement of the Products purchased by Customer unless such use, modification, or enhancement is approved in writing by the manufacturer or licensor of the Products.
18. AGE REQUIREMENTS FOR CERTAIN PRODUCTS.
Where the law requires a minimum age for the purchase of certain products, Customer confirms that he or she is over the required age and that delivery of the Products will be accepted by a person over the applicable age limit.
19. FORCE MAJEURE.
Fansco will not be liable for delays in delivery or for failure to perform its obligations due to causes beyond its reasonable control, including, but not limited to, product allocations, material shortages, labor disputes, transportation delays, unforeseen circumstances, acts of God, acts or omissions of other parties, acts or omissions of civil or military authorities, Government priorities, fire, strikes, floods, severe weather conditions, computer interruptions, terrorism, epidemics, quarantine restrictions, riots, or war. Fansco’s time for delivery or performance will be extended by the period of such delay or Fansco may, at its option, cancel any order or remaining part thereof without liability by giving notice to Customer.
20. EXPORT CONTROLS.
Fansco is committed to compliance with all United States of America (“U.S.”) Export Regulations and Laws. Fansco will not sell or ship to countries embargoed by the U.S. Treasury Office of Foreign Asset Control (“OFAC”). Fansco will not sell or ship to individuals or organizations identified by the U.S. Treasury as Specially Designated Nationals and Blocked Persons. Fansco will not sell or ship products prohibited under Export Administration Regulations (“EAR”) or the International Traffic in Arms Regulations (“ITAR”) to individuals or organizations identified by the U.S. Department of Commerce, Bureau of Industry and Security (“BIS”) or by the U.S. Department of State, Directorate of Defense Trade Controls (“DDTC”). Furthermore, Fansco prohibits the re-export, brokering or transshipment of its products to any individual, organization or country prohibited by the OFAC, BIS, or DDTC.
Products purchased are subject to export control laws, restrictions, regulations and orders of the United States and may be subject to the export and/or import control laws and regulations of other countries. Acceptance of export orders is not valid unless confirmed in writing by Fansco. Customer agrees to comply with all applicable export laws, restrictions and regulations of the United States or foreign agencies or authorities, and shall not export, or transfer for the purpose of re-export, any product to any prohibited or embargoed country or to any denied, blocked, or designated person or entity as mentioned in any such United States or foreign law or regulation. Customer represents and warrants that it is not on the Denied Persons, Specially Designated Nationals or Debarred Persons List and is not otherwise prohibited by law from purchasing the Products or services hereunder. Customer, NOT Fansco, shall be responsible for obtaining any required license to export, re-export or import. Customer shall not name Fansco as shipper or exporter of record in connection with the export of any Products purchased from Fansco.
Any use made of Fansco classifications, whether it be Export Control Classification Numbers (“ECCNs”) or any variation of Harmonized Tariff codes, is without recourse to Fansco and at Customer’s risk. Export classifications are subject to change. If you export or re-export, Customer, as the exporter of record, is responsible for determining the correct classification of any item at the time of export. Any export classification by Fansco is for Fansco’s internal use only and shall not be construed as a representation or warranty regarding the proper export classification nor relied upon to make licensing determinations.
Customer will not directly or indirectly export, re-export, sell or transfer any Product to any country for which an export license or other governmental approval is required without first obtaining all licenses and other approvals. Customer acknowledges that Fansco and its licensors own the intellectual property rights in the Fansco catalogs, the catalog content and the stock numbers, and that their whole or partial reproduction without Fansco’s prior written consent is prohibited.
Fansco is only acting as a distributor of products manufactured by other companies. Thus, Fansco expressly limits its guarantees and warranties for products sold hereunder to those extended and allowed by the manufacturing company to be passed through to Fansco’s customers. There are no express or implied warranties which extend beyond the description on the face hereof. Fansco disclaims and excludes from any sale of products herein, any implied warranties or merchantability, or of fitness or suitability for any particular purpose or use. All Products sold by Fansco are purchased by the Customer “AS IS.” Since Fansco cannot control the manner or use of its products after their sale, Fansco will not be responsible for any direct, consequential or indirect damages to the purchaser or any third party or ultimate user of the products. Fansco will, at its option, either replace the Products sold or refund the purchase price should a product defect be brought to its attention within a reasonable time after sale.
21 EXPORT ORDERS.
All orders of international origin or to an international destination are exported from the U.S. in compliance with EAR or ITAR, as applicable, to the specific product being ordered. The ability to export certain products may be contingent on approval by the Unites States Government and Fansco cannot guarantee such approval. All taxes, duties, insurance, shipping charges, and other international charges and fees are the responsibility of the Customer. Minimum order is $50.00.
Terms for payment on export orders are cash or credit card. Cash orders in U.S. dollars will be accepted for immediate processing. Credit terms are available to qualified customers – inquire when placing order.
22. TERMINATION.
Either party may terminate the whole or any part of the other party’s performance under a purchase order if there is a material breach of these Terms and Conditions. In the event of any such breach, the non-breaching party will provide the breaching party with written notice of the nature of the breach and the non-breaching party’s intention to terminate for default. In the event the breaching party does not cure such failure within ten (10) days of such notice, the non-breaching party may, by written notice, terminate
23. DISPUTE RESOLUTION AND LIMITATION ON ACTIONS.
Fansco and Customer agree that any Dispute between Fansco and Customer will be resolved exclusively and finally by arbitration administered by the American Arbitration Association (“Arbitrator”) and conducted under its rules, except as otherwise provided below. Customer and Fansco will agree on another arbitration forum if Arbitrator ceases operations. The arbitration will be conducted before a single arbitrator, and will be limited solely to the Dispute (defined below) between Fansco and Customer. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis. The arbitration shall be held in Fort Worth, Texas. Any decision rendered in such arbitration proceedings will be final and binding on the parties, and judgment may be entered thereon in any court of competent jurisdiction. Should either party bring a Dispute in a forum other than Arbitrator, the arbitrator may award the other party its reasonable costs and expenses, including attorneys’ fees, incurred in staying or dismissing such other proceedings or in otherwise enforcing compliance with this dispute resolution provision. Customer understands that, in the absence of this provision, Customer would have had a right to litigate disputes through a court, including the right to litigate claims on a class-wide or class-action basis, and that Customer has expressly and knowingly waived those rights and agreed to resolve any Disputes through binding arbitration in accordance with the provisions of this paragraph. For the purposes of this provision, the term “Dispute” means any dispute, controversy, or claim arising out of or relating to: (i) this Agreement, its interpretation, or the breach, termination, applicability or validity thereof, (ii) the related order for, purchase, delivery, receipt or use of any product or service from Fansco, or (iii) any other dispute arising out of or relating to the relationship between Customer and Fansco; in this Section 23, the term “Fansco” means Fansco Inc., its parents, subsidiaries, affiliates, directors, officers, employees, beneficiaries, agents, assigns, component suppliers (both hardware and software), and/or any third party who provides products or services purchased from or distributed by Fansco. Any Dispute must be initiated within one (1) year from the date of purchase or provision of the Product at issue except for a Dispute based on breach of warranty which must be initiated within ninety (90) days of the date Fansco denies a warranty claim under Section 9 of these Terms and Conditions.
With respect to all Disputes, the provisions of the United Nations Convention on Contracts for the International Sale of Products 1980 (as amended, replaced or codified from time to time) shall not apply.
24. GENERAL.
These Terms and Conditions set out the sole and entire agreement between Fansco and Customer with respect to the subject matter contained herein and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. Customer and Fansco each acknowledges that in entering into this Agreement it has not relied on any representation or undertaking, whether oral or in writing, save such as are expressly incorporated herein. The Terms and Conditions may not be modified or cancelled without Fansco’s written agreement. Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof in that jurisdiction or affecting the validity or enforceability of such provision in any other jurisdiction. The provisions set out in these Terms and Conditions 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. The Terms and Conditions will be governed by and construed in accordance with the laws of the state of Texas, other than the conflicts of laws principles thereof, and subject to the jurisdiction of Fort Worth, Texas courts.
25. MISCELLANEOUS.
Fansco shall be entitled, without the consent of or notice to Customer, to assign or subcontract any of its obligations or rights hereunder, including with respect to the sale of products or the right to receive payment. Customer may not assign this Agreement, or any of Customer’s rights or obligations herein without the prior written consent of Fansco. This Agreement shall be binding on and inure to the benefit of all such permitted successors and assigns. The relationship between the parties is that of independent contractors and not that of employer/employee, partnership or joint venture. Notices provided under this Agreement shall be in writing and deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or one (1) day after such notice is sent by personal delivery or facsimile transmission. Notices to Fansco must be addressed to: Quality & Compliance Department, Fansco Electronics, Inc., 7151 Jack Newell Blvd. S., Fort Worth, TX 76118. Notices to Customer shall be sent to the physical address associated with Customer’s account in Fansco’s electronic records. It is Customer’s responsibility keep such information current by editing the “My Account” page on www.fansco.com as necessary.
26. PRIVACY, DATA PROTECTION AND DATA.
Fansco’s Privacy Policy is incorporated herein by reference. Customer can review Fansco’s Privacy Policy and security measures on our web site at www.fansco.com. The Privacy Policy also explains how you can update your information and elect not to receive email marketing solicitations from Fansco.
27. GOVERNING VERSION.
The English version of these Terms and Conditions shall prevail wherever there is a discrepancy between the English version and any other language version, including, without limitation, the Spanish version.
