3G New & Used Goods Sales Terms & Conditions
I. Applicability
These Terms & Conditions (“Terms”) govern the sale of new and used goods (“Equipment”) by 3G Productions, LLC, a Nevada limited liability company (“Vendor”), to the buyer (“Customer”) identified on the Customer order(s) (collectively, “Customer Order”).
Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of Equipment covered (an “Existing Contract”), the terms and conditions of such Existing Contract shall prevail to the extent they are inconsistent with these Terms.
The Customer Order and these Terms, together with the Existing Contract (if any), (collectively, the “Agreement”) comprise the entire agreement between the parties with respect to the subject matter contained herein and supersede all prior or contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
The Agreement shall prevail over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its Customer Order or such terms. Fulfillment of Customer’s Order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend the Agreement.
Notwithstanding anything to the contrary contained in this Agreement, 3G may, from time to time, change the Terms without the consent of Customer provided that such changes do not materially affect the nature or scope of the Agreement, the fees, or any performance dates set forth in the Agreement.
II. New & Used Equipment Sales Overview and Summary
New Equipment Sales Agreement Overview
New Equipment Sales are defined as the sale of brand-new products shipped directly from third-party manufacturers. The following Terms apply to New Equipment Sales. Further, detailed Terms can be found in Exhibit A.
Drop-Shipment Model: All New Equipment is sold on a drop-ship basis directly from the original manufacturer (“Manufacturer”) to the Customer. Vendor never takes physical possession, stores, inspects, or handles the Equipment. Vendor's delivery obligation is limited to transmitting the order to the manufacturer.
Manufacturer Warranty Pass-Through: Vendor provides no direct warranty. The sole warranty available is the standard written Manufacturer warranty passed through to the Customer. Vendor expressly disclaims all express warranties and all implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
Inspection & Claims Deadlines:
Order Non-conformance: Non-conforming, incorrect Equipment shipped must be reported to Vendor in writing within 24 hours of receipt.
Visible Transit Damage/Shortages: All visible damage or shortages must be noted directly on the carrier delivery receipt and reported to Vendor in writing within 3 business days.
Concealed Damage: All concealed damage must be reported to Vendor in writing within 7 days of discovery, but no later than 30 days after delivery.
Failure to Report: Non-reporting of any kind within the required time frame releases Vendor of any responsibility for non-conforming or damaged Equipment.
Direct Pursuit of Manufacturer: Customer's sole recourse for Equipment defects or damage is directly against the Manufacturer or carrier. Back-charges, deductions, or set-offs against Vendor are strictly prohibited.
Full Terms: Full Terms relating to the sale of new Equipment can be found on Exhibit A.
Used Equipment Sales Agreement Overview
Used Equipment Sales are defined as the sale of pre-owned Equipment sold directly by 3G Productions. The following Terms apply to Used Equipment Sales. Further, detailed Terms can be found in Exhibit A.
Vendor Warranty Period: Vendor warrants that the Used Equipment will materially conform to agreed specifications for a period of one (1) month from the date of shipment. (“Warranty”) Third-party manufactured components are excluded from this coverage.
Inspection & Defect Notification: Customer must inspect the Equipment within 24 hours of receipt to report nonconforming deliveries. Notwithstanding, written notice of any non-conformance must be submitted to Vendor in writing within 7 days of discovery. Vendor in its sole discretion shall determine the remedy for non-conformance.
Exclusive Warranty Remedies: For valid Warranty claims, submitted in writing within the one-month Warranty period, Vendor may, at its sole discretion, repair the Equipment, replace it with conforming Equipment, or issue a pro-rata refund/credit.
Exclusions: The Warranty is void if the Customer continues using the Equipment after giving notice of a defect, fails to follow all operational/storage instructions, or alters/repairs Equipment.
Full Terms: Full Terms relating to the sale of used Equipment can be found on Exhibit A.
New & Used Equipment Sales Agreement Terms Comparison
Payment Terms & Pricing: Invoiced amounts are due immediately upon receipt in U.S. dollars via check or wire transfer. Late payments accrue interest at 1.5% per month (or the maximum allowable by law). All prices exclude applicable sales, use, excise, and governmental taxes, which are the Customer's responsibility.
Delivery & Title: Equipment is delivered FOB Delivery Point. Title and risk of loss transfer to the Customer upon delivery at the designated delivery point. Vendor retains a Purchase Money Security Interest (PMSI) under the Nevada UCC until payment is made in full.
III. General Tems and Conditions applicable to all Agreements
1. Compliance with Law. Customer shall (a) comply with all applicable laws, regulations, and ordinances, and (b) maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
2. Indemnification. Customer shall indemnify, defend, and hold harmless Vendor and its officers, directors, managers, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, incurred by Indemnified Party, relating to any claim of a third party or Vendor arising out of or occurring in connection with the Equipment or Customer’s negligence, willful misconduct, or breach of this Agreement. Customer shall not enter any settlement without Vendor’s or Indemnified Party’s prior written consent.
3. Termination. In addition to any remedies that may be provided in this Agreement, Vendor may terminate this Agreement with immediate effect upon notice to Customer, if Customer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
4. Survival. Subject to the limitations and other provisions of this Agreement, (a) the representations and warranties of the parties contained herein shall survive the expiration or earlier termination of this Agreement, and (b) any provision of this Agreement that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
5. Notices. All notices, requests, consents, claims, demands, waivers, summons, and other legal process, and other similar types of communications hereunder must be in writing and addressed to the relevant party at the address set forth on the Customer Order (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). All notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). A notice is effective only (a) upon receipt by the receiving party and (b) if the party giving the notice has complied with the requirements of this Section.
6. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
7. Amendments. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party hereto.
8. Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
9. Assignment; Successors and Assigns. Customer shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Vendor. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Customer of any of its obligations hereunder. Vendor may at any time assign, transfer, or subcontract any or all of its rights or obligations under this Agreement to any affiliate or to any person acquiring all or substantially all of Vendor’s assets without Customer’s prior written consent. This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns.
10. No Third-Party Beneficiaries. This Agreement benefits solely the parties to this Agreement and their respective permitted successors and permitted assigns, and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
11. Choice of Law; Forum Selection. This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of the State of Nevada, without regard to the conflict of laws provisions of such State. Any legal suit, action, or proceeding arising out of or relating to this Agreement must be instituted in the federal courts of the United States of America or the courts of the State of Nevada, in each case located in Clark County, Nevada, and each party hereto irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
12. Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
13. Limitation of Liability. IN NO EVENT SHALL VENDOR BE RESPONSIBLE OR LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF ANY PROVISION OF THIS AGREEMENT, REGARDLESS OF (a) WHETHER SUCH DAMAGES WERE FORESEEABLE, (b) WHETHER OR NOT VENDOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (c) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN NO EVENT SHALL VENDOR’S AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO VENDOR HEREUNDER ON THE SINGULAR ORDER OR $500,000.00, WHICHEVER IS LESS.
14. Force Majeure. No party hereto shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to Vendor hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the reasonable control of the impacted party (“Impacted Party”), including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemic, pandemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within two business days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of ninety (90) days following written notice given by it in accordance with proper notice procedures, either party may thereafter terminate this Agreement upon fifteen (15) days’ written notice.
15. Headings. Headings in this Agreement are for convenience of reference only and are not to be used in any interpretation of this Agreement between the parties.
16. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint
venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.
17. Representations. Customer hereby represents and warrants that: (a) it has the full right, power, and authority to enter into this Agreement and perform its obligations hereunder; (b) the execution of this Agreement by each individual whose signature is set forth on this Agreement and the delivery of this Agreement by Customer have been duly authorized by all necessary action on the part of Customer; and (c) this Agreement, assuming due execution and delivery by Vendor, constitutes the legal, valid, and binding obligation of Customer, enforceable against Customer in accordance with its terms.
18. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same Agreement. Notwithstanding anything to the contrary, the reference to these Terms, and the Agreement as a whole, were delivered through proper means and notice to Customer through notice on Customer Order via weblink or by requested mailing. As such, the Terms are acknowledged by Customer and agreed to be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
EXHIBIT A
Terms – New & Used Equipment Sales
1.Delivery of Equipment.
(a) The Equipment will be drop-shipped by the Manufacturer (or its designated carrier) directly to the Customer on the date specified on the Customer Order or, if no date is specified, within a reasonable time after Customer executes this Agreement, in each case subject to availability of finished Equipment from the Manufacturer. Vendor shall not be liable for any delays, loss, or damage in transit. The Equipment shall be delivered to the delivery point specified on the Customer Order (the "Delivery Point"). Vendor's sole obligation with respect to delivery is to transmit the Customer Order to the Manufacturer and to use commercially reasonable efforts to cause the Manufacturer to ship the Equipment to the Delivery Point. If no delivery date is specified in the Customer Order, then Customer shall accept delivery of the Equipment at the Delivery Point within two business days of Vendor's (or the Manufacturer's) written notice that the Equipment has been delivered to the Delivery Point.
(b) Vendor may, in its sole discretion, without liability or penalty, make partial shipments of Equipment to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of the quantity purchased under this Agreement.
(c) If for any reason Customer fails to accept delivery of any of the Equipment on the date specified on the Customer Order or fixed pursuant to Vendor's notice, as applicable, or if the Manufacturer is unable to deliver the Equipment at the Delivery Point on such date because Customer has not provided appropriate instructions, documents, licenses, or authorizations, then: (i) risk of loss to the Equipment shall pass to Customer; (ii) the Equipment shall be deemed to have been delivered; and (iii) Vendor, at its option, may store the Equipment or cause the Equipment to be stored until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
2. Quantity. If Vendor delivers to Customer a quantity of Equipment of up to 5% more or less than the quantity set forth in this Agreement, Customer shall not be entitled to object to or reject the Equipment or any portion of them by reason of the surplus or shortfall and shall pay for such Equipment the price set forth in this Agreement adjusted pro rata.
3. Shipping Terms, Title and Risk of Loss.
Delivery of the Equipment shall be made FOB Delivery Point, with drop-shipment from the Manufacturer (or its carrier) directly to Customer. Title and risk of loss pass to Customer upon delivery of the Equipment at the Delivery Point. Any claims for damage to the Equipment in transit, visible shortages, or visible defects in external packaging shall be made by Customer directly to the carrier at the time of delivery (and noted on the delivery receipt), with prompt written notice to Vendor. As collateral security for the payment of the purchase price of the Equipment, Customer hereby grants to Vendor a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Equipment, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Nevada Uniform Commercial Code.
4. Customer's Acts or Omissions.
If Vendor's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Vendor shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
5. Inspection and Rejection of Nonconforming Equipment.
(a) NEW EQUIPMENT: Vendor does not take possession of, inspect, or test the Equipment at any time; all Equipment is shipped directly from the Manufacturer to Customer. Customer shall inspect the Equipment within 24 hours of receipt ("Inspection Period"). Customer will be deemed to have accepted the Equipment unless it notifies Vendor in writing of any Nonconforming Equipment during the Inspection Period and furnishes such written evidence or other documentation as required by Vendor. "Nonconforming Equipment" means only the following: the Equipment shipped is different than specified in the Customer Order. For the avoidance of doubt, Nonconforming Equipment does not include any matter that is, or is alleged to be, covered by the Manufacturer Warranty.
(b) USED EQUIPMENT: Customer shall inspect the Equipment within 24 hours of receipt (“Inspection Period”). Customer will be deemed to have accepted the Equipment unless it notifies Vendor in writing of any Nonconforming Equipment during the Inspection Period and furnishes such written evidence or other documentation as required by Vendor. “Nonconforming Equipment” means only the following: equipment shipped is different than specified on the Customer Order.
(c) If Customer timely notifies Vendor of any Nonconforming Equipment, Vendor shall, in its sole discretion, (i) replace such Nonconforming Equipment with conforming Equipment (arranged through the Manufacturer), or (ii) credit or refund the Price for such Nonconforming Equipment. Customer shall ship, at its expense and risk of loss, the Nonconforming Equipment to the Manufacturer's facility (or such other facility specified in the Customer Order). If Vendor exercises its option to replace Nonconforming Equipment, then Vendor shall, after receiving Customer's shipment of Nonconforming Equipment, ship to Customer, at Vendor's expense and risk of loss, the replaced Equipment to the Delivery Point.
(d) Customer acknowledges and agrees that the remedies set forth herein are Customer's exclusive remedies for the delivery of Nonconforming Equipment. All sales of Equipment to Customer are made on a one-way basis and Customer has no right to return Equipment purchased under this Agreement to Vendor.
6. Price.
Customer shall purchase the Equipment from Vendor at the prices ("Prices") set forth on the Customer Order. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs, and taxes; provided that Customer shall not be responsible for any taxes imposed on, or with respect to, Vendor's income, revenues, gross receipts, personnel, real or personal property, or other assets.
7. Payment Terms.
Customer shall pay all invoiced amounts due to Vendor on receipt of Vendor's invoice. Customer shall make all payments hereunder by check or wire transfer and in U.S. dollars. Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Vendor for all costs incurred in collecting any late payments, including reasonable attorneys' fees. Payment of any late charge does not excuse Customer of any default under this Agreement. In addition to all other remedies available under these Terms or at law (which Vendor does not waive by the exercise of any rights hereunder), Vendor shall be entitled to suspend the delivery of any Equipment or performance of any Services (and stop Equipment in transit) if Customer fails to pay any amounts when due hereunder. Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Vendor, whether relating to Vendor's breach, bankruptcy, or otherwise.
8. Manufacturer Warranty Pass-Through; Drop-Ship Equipment Disclaimer – NEW EQUIPMENT ONLY
(a) The New Equipment sold under this Agreement is manufactured by a third party (the "Manufacturer"). Vendor makes no warranty of any kind with respect to the Equipment. The only warranty available to Customer with respect to the Equipment is the standard written warranty provided by the Manufacturer, if any (the "Manufacturer Warranty"). Vendor shall pass through to Customer the benefit of any Manufacturer Warranty to the extent Vendor is permitted to do so under its agreement with the Manufacturer, and shall, at Customer's request and expense, reasonably cooperate with Customer in submitting claims under the Manufacturer Warranty. Vendor does not assume any responsibility for the performance of the Manufacturer Warranty or for any act or omission of the Manufacturer.
(b) EXCEPT FOR THE PASS-THROUGH OF ANY MANUFACTURER WARRANTY, VENDOR MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE EQUIPMENT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY, (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR (iii) WARRANTY THAT THE EQUIPMENT WILL CONFORM TO ANY SPECIFICATIONS, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(c) Vendor shall not be liable unless: (i) Customer gives written notice of the matter giving rise to the claim, reasonably described, to Vendor within seven days of the time when Customer discovers or ought to have discovered the matter; and (ii) Customer has first submitted the underlying claim to the Manufacturer in accordance with the Manufacturer's warranty procedures and provided Vendor with reasonable documentation of such submission.
(d) Vendor shall not be liable if: (i) Customer makes any further use of the Equipment after giving such notice; (ii) the issue arises because Customer failed to follow the Manufacturer's or Vendor's oral or written instructions as to the storage, installation, commissioning, use, or maintenance of the Equipment; or (iii) Customer alters or repairs the Equipment without the prior written consent of Vendor or the Manufacturer.
(e) THE PASS-THROUGH OF THE MANUFACTURER WARRANTY SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY, AND VENDOR'S ENTIRE LIABILITY, FOR ANY DEFECT, NONCONFORMITY, MALFUNCTION, OR OTHER FAILURE OF THE EQUIPMENT. VENDOR HAS NO OBLIGATION TO REPAIR, REPLACE, OR REFUND THE PRICE OF ANY EQUIPMENT BEYOND WHAT IS REQUIRED UNDER THE MANUFACTURER WARRANTY.
(f) Drop-Ship Pass-Through; Sole and Exclusive Warranty. Because the Equipment is drop-shipped from the Manufacturer or its carrier directly to Customer and Vendor never takes possession of, inspects, tests, or otherwise handles the Equipment at any time, the Manufacturer Warranty is the sole and exclusive warranty with respect to the Equipment. Vendor assigns and passes through to Customer, and Customer accepts, any assignable portion of the Manufacturer Warranty, to the extent Vendor is permitted to do so under its agreement with the Manufacturer and under the terms of the Manufacturer Warranty, and Vendor shall have no further obligation with respect to the Manufacturer Warranty beyond such assignment. Vendor makes no representation or warranty that the Manufacturer Warranty is assignable, transferable, or otherwise available to Customer, and Vendor shall have no liability to Customer in the event that the Manufacturer Warranty is held to be non-assignable or otherwise unavailable to Customer.
(g) Disclaimer Specific to Drop-Shipped Equipment. Vendor expressly disclaims, with respect to the drop-shipped Equipment, all warranties of any kind, express or implied, including any warranty of merchantability, fitness for a particular purpose, conformance to specifications, non-infringement, design, manufacture, materials, workmanship, labeling, packaging, installation, performance, safety, or fitness. Because Vendor never takes possession of, inspects, tests, or otherwise handles the Equipment, Vendor expressly disclaims any responsibility for the condition, quality, performance, or fitness of the Equipment. Customer acknowledges that Customer is relying solely on the representations, warranties, and covenants of the Manufacturer and not on those of Vendor.
(h) Title and Risk of Loss at Drop-Ship. Title to and risk of loss of, and all incidents of ownership in, the Equipment shall pass from the Manufacturer (or its carrier) to Customer upon delivery of the Equipment to the Delivery Point (FOB Delivery Point). Vendor shall not be deemed a bailee, consignee, warehouser, or in any way responsible or liable for the Equipment prior to such delivery, and shall have no liability for any loss, theft, damage, or destruction of the Equipment occurring prior to such delivery, regardless of the cause.
(i) Customer's Duty to Inspect; Carrier and Concealed-Damage Claims. Customer shall inspect the Equipment at the time of delivery. Any claim for visible damage to the Equipment, shortages in quantity, or defects in external packaging shall be noted on the carrier's delivery receipt at the time of delivery and reported in writing to Vendor within three (3) business days after delivery. Any claim for concealed damage, defect, or shortage not reasonably discoverable upon receipt shall be reported in writing to Vendor within seven (7) days after Customer discovers or reasonably should have discovered the same, and in any event no later than thirty (30) days after delivery. Failure to give timely notice in accordance with this Section shall constitute Customer's irrevocable acceptance of the Equipment and an absolute waiver of any related claim against Vendor, the Manufacturer, or any carrier. Customer's sole recourse for any visible or concealed damage, defect, or shortage in the Equipment shall be against the Manufacturer or the carrier, and not against Vendor.
(j) Customer's Direct Pursuit of Manufacturer; Vendor's Limited Cooperation. For any matter governed by or relating to the Manufacturer Warranty, Customer shall first submit the claim directly to the Manufacturer in accordance with the Manufacturer's published warranty procedures and shall provide Vendor with reasonable evidence of such submission. Vendor shall, at Customer's request and expense, provide reasonable cooperation to Customer in pursuing the claim with the Manufacturer, including the furnishing of invoices, serial numbers, order acknowledgments, and other reasonably available documentation. Vendor does not represent or warrant that any claim submitted to the Manufacturer will be accepted or resolved in Customer's favor, and Vendor shall have no liability for any denial, delay, or unsatisfactory resolution of any Manufacturer Warranty claim. Vendor shall have no obligation to participate in, mediate, or resolve any dispute between Customer and the Manufacturer.
(k) No Back-Charges; No Consequential Damages Against Vendor. Customer shall not, and shall not attempt to, charge back, set off, recoup, deduct, withhold, or otherwise recover from Vendor any amount arising out of or relating to (i) any defect, malfunction, non-conformance, or failure of the Equipment, (ii) any delay, denial, or unsatisfactory resolution of any Manufacturer Warranty claim, (iii) any act or omission of the Manufacturer or any carrier, (iv) any delay in delivery of the Equipment by the Manufacturer, or (v) any non-conformity of the Equipment with any specification, description, or representation made by the Manufacturer. In no event shall Vendor be liable to Customer for any consequential, indirect, incidental, special, exemplary, punitive, or enhanced damages, lost profits or revenues, or diminution in value arising out of or relating to the Equipment, the Manufacturer Warranty, or any act or omission of the Manufacturer or any carrier, and Customer expressly waives and releases Vendor from any and all such claims.
9. Limited Warranty – USED EQUIPMENT ONLY.
(a) Vendor warrants to Customer that for a period of one month from the date of shipment of the Used Equipment ("Warranty Period"), that such Equipment will materially conform to the specifications set forth in the Customer Order, if any.
(b) EXCEPT FOR THE WARRANTIES SET FORTH HEREIN, VENDOR MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE EQUIPMENT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY OR (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(c) Products manufactured by a third party ("Third-Party Products") may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Equipment. Third-Party Products are not covered by the warranty in Section.
(d) VENDOR MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY OR (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(e) Vendor shall not be liable for a breach of the warranties set forth herein unless: (i) Customer gives written notice of the defective Equipment or Services, as the case may be, reasonably described, to Vendor within seven (7) days of the time when Customer discovers or ought to have discovered the defect; (ii) if applicable, Vendor is given a reasonable opportunity after receiving the notice of breach of the warranty set forth herein to examine such Equipment and Customer (if requested to do so by Vendor) returns such Equipment to Vendor's place of business at Vendor's cost for the examination to take place there; and (iii) Vendor reasonably verifies Customer's claim that the Equipment or Services are defective.
(f) Vendor shall not be liable for a breach of the warranty set forth herein if: (i) Customer makes any further use of such Equipment after giving such notice; (ii) the defect arises because Customer failed to follow Vendor's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment; or (iii) Customer alters or repairs such Equipment without the prior written consent of Vendor.
(g) With respect to any such Equipment during the Warranty Period, Vendor shall, in its sole discretion, either (i) repair or replace such Equipment (or the defective part) or (ii) credit or refund the price of such Equipment at the pro rata contract rate, provided that, if Vendor so requests, Customer shall, at Vendor's expense, return such Equipment to Vendor.
(h) THE REMEDIES SET FORTH HEREIN SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND VENDOR'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH HEREIN.