Terms of Service
TERMS AND CONDITIONS OF SALE
1. ACCEPTANCE OF ORDERS: The acceptance of all orders and all sales by Custom Power are made subject to and expressly conditional upon these Terms and Conditions of Sale (“Terms and Conditions”). We only accept orders and purchases on the condition that Buyer agrees to all the terms in these Terms and Conditions. Unless you assent to all the Terms and Conditions, this section shall be deemed a rejection of your offer and our acknowledgement of your purchase order, agreement to ship or shipment of any products to you shall not be an acceptance of any terms and conditions not set forth herein and shall constitute a counteroffer. Buyer may accept the counter offer only on these Terms and Conditions. TERMS IN YOUR ACCEPTANCE THAT ARE ADDITIONAL TO OR NOT IDENTICAL WITH THESE TERMS AND CONDITIONS OF THE COUNTEROFFER WILL NOT BECOME PART OF THE CONTRACT WITHOUT OUR EXPRESS WRITTEN CONSENT.
2. QUOTATION: This quotation is firm for thirty (30) days from date. Clerical errors are subject to correction. Acceptance of the offer represented by this quote is expressly limited to the provisions hereof. Signing and returning the acknowledgment copy of this quote or, in any event, acceptance in whole or in part of the articles to be presented hereunder shall constitute acceptance of this offer. No additional or different terms in Buyer's purchase order or other communication shall constitute a part of the quotation unless expressly agreed to in writing by Custom Power and no provision of the quotation may be changed or waived in any respect except in writing by an authorized representative of Custom Power. This offer may be accepted only on the terms set forth in the offer. Terms in your acceptance that are in addition to or not identical with the terms of this quote and offer will not become part of the contract. Any provisions herein for the delivery of items or the rendering of services by installments, shall not be construed as making the obligations of Custom Power severable. Buyer agrees that if the Buyer changes the quantity of products to be released for shipment, Custom Power has the right to increase or decrease the price for the quantity of products shipped to Buyer.
3. PRICE POLICY: Price in effect at time of shipment. However, if a price increase becomes effective after the date of order, it will not apply to items shipped within 30 days from the effective date of the price increase. Sales prices apply only if total quantity on the purchase order is released within twelve (12) months for shipments scheduled not more than fifteen (15) months from the date or order.
4. TAXES: All prices are exclusive of all present or future federal, state, and local excise, sales, use, value added, and similar taxes. These taxes shall be paid by Buyer, or Buyer shall provide Custom Power with a tax exemption certificate, which Custom Power in its sole and absolute discretion, finds acceptable.
5. PAYMENT: Unless Custom Power has extended credit to Buyer. Buyer shall pay Custom Power, at Custom Powers' option, either by: Cash with Order, Credit Card, Letter of Credit, Wire Transfer, or Sight Draft. Should Custom Power elect to extend credit to Buyer, payment balances over 30 days will be subject to 1.5% finance charge. Custom Power reserves the right at any time to change the amount of or to withdraw any credit extended to Buyer. Each shipment shall be considered a separate and independent transaction and payment therefore shall be made accordingly. Buyer shall be liable for all collection costs (including attorney's fees) incurred by Custom Power in connection with past due payments.
6. TITLE AND DELIVERY: Custom Power shall deliver products to Buyer F.O.B. Point of Shipment; Partial deliveries shall be permitted. All shipping charges and expenses shall be paid by Buyer.
** Shipping and handling fees will be added to invoice.
Title of merchandise passes to the Buyer at FOB point. Parts damaged in shipment cannot be returned and all claims for such damage should be directed immediately to the transportation company.
7. FORCE MAJEURE: Custom Power shall not be liable for delay or failure to deliver or perform due to any cause beyond its reasonable control, or for Acts of God, acts of Buyer, acts of any governmental authority, strikes or other Buyer, acts of any governmental authority, strikes or other labor disturbances, delays in transportation, fuel or energy shortages, or inability to obtain necessary materials, components, services, or facilities from usual sources.
8. HELD ORDERS: Any orders held, delayed, or rescheduled at the request of the Buyer will be subject to the prices and conditions of sale in effect at the time of release of the holder or reschedule, plus any additional costs incurred due to the hold or reschedule. Any such order held, delayed, or rescheduled beyond a reasonable period of time will be treated as a Buyer termination.
9. SPECIAL DOMESTIC OR EXPORT PACKING: Prices include products having standard domestic packing only. Where special domestic packing or packing for overseas shipment is required, contact Custom Power.
10. DELAYS: Custom Power shall not be liable for any loss or damages resulting from any shipping delay, whether or not Custom Power agrees to a specific shipping date.
11. EXPERIMENTAL SALES: In the event the goods or any portion thereof furnished to Buyer are identified as "prototypes", "samples", "for approval", "on consignment", "for evaluation", or in similar terms, Buyer agrees that such material or information is confidential and that it will be liable for any disclosure of such material or information other than to employees required for evaluation by Buyer.
12. MINIMUM FACTORY ORDER: Custom Power will not accept an order of less than $200.00 in value exclusive of transportation charges as indicated under "TITLE AND DELIVERY". The minimum custom assembly will be $1,000.00 for each order.
13. BLUEPRINTS AND SPECIFICATION: All assembly orders are accepted with understanding that the parts or material furnished will be in accordance with blueprints and specification on hand in Custom Powers' files or furnished to Custom Power. With the Buyer's order, and which have been specifically agreed to and accepted by Custom Power in writing as applicable to such order.
14. NEW DESIGNS: On all new custom battery pack assemblies, Custom Power may charge a NRE (non-recurring engineering fee) that will be quoted with the price quote for the battery pack that the Buyer is requiring. Custom Power will submit drawing to the Buyer for sign off approval, that the battery pack assembly is correct. Custom Power will not proceed on the order unless the drawing is signed off by the Buyer. Custom Power will submit a 1st article for a new battery pack assembly for the Buyer’s written approval before production will proceed with assembling the balance of the order. The approved 1st article will be included as part of the total quantity of the order.
15. EQUIPMENT: Any equipment (including jigs, dies and tool) which Custom Power constructs or acquires for Buyer, notwithstanding any changes thereof, shall be and remain Custom Powers property and in Custom Powers possession and control, and any amounts paid in connection therewith by the Buyer, shall be considered a service charge. All such equipment Custom Power may make such use or disposition thereof as it desires without liability to Buyer. New or additional dies or changes necessary in existing equipment to conform with changes in design ordered by the Buyer are to be paid for by the Buyer. Dies or equipment service charges applicable cover only the useful life of such dies or equipment. Any materials owned or furnished by Buyer while in Custom Powers possession will be carefully handled and stored by Custom Power, but Custom Power shall have no responsibility for loss or damage thereto.
16. WARRANTIES AND REMEDIES:
(a) WARRANTIES: Custom Power warrants to Buyer that its products shall be free from defects in material and workmanship and shall conform to any written mutually agreed upon specification, for a period of twelve (12) months from the date of manufacture. Provided, however, that as a condition of these warranties the products shall have been stored, installed, operated, and maintained in accordance with recommendations and applied in accordance with standard industry practice. Products which are "engineering samples", are sold "AS IS", 'WITH ALL FAULTS", and with no warranty whatsoever.
(b) REMEDIES: Should Buyer believe that products sold hereunder fail to meet the above applicable warranty, Custom Power, at its sole option, will repair or replace such product(s) or issue Buyer a credit or a refund in the amount of the purchase price for such product(s) (“Exclusive Remedy”) provided that: (i) Custom Power is notified in writing by Buyer within 30 days after discovery of such failure, Buyer is to obtain a Return Material Authorization Form (“RMA”) from Custom Power to return 1 part for test and examination to establish the reason for the battery failure. At which time Custom Power will determine whether the balance of the batteries may be returned using a RMA, or not: (ii) Buyer obtains a RMA from Custom Power prior to returning any defective products: (iii) the defective products are returned to the location specified by Custom Power: (iv) the defective products are received by Custom Power no later than four (4) weeks following the last day of the warranty period; and (v) Custom Power shall determine, in its sole and absolute discretion, upon examination of such products that such failures have not been caused by improper installation, application, repair, alteration, accident or negligence.
(c) The Exclusive Remedy is the Buyers exclusive remedies for claims based on defects in or failure of any products whether a claim is based in contract, tort (including negligence and strict liability), warranty or otherwise and however instituted. Upon the expiration of the applicable warranty for any products, all such liability shall terminate. EXCEPT AS EXPRESSLY SET FORTH ABOVE, CUSTOM POWER PRODUCTS ARE PROVIDED “AS IS” AND “AS WHERE.” CUSTOM POWER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ORALLY OR IN WRITING, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, TITLE, USAGE OR TRADE PRACTICE. The parties acknowledge that the price of Custom Powers products would be much greater if Custom Power undertook more extensive liability.
(d) The above warranties shall apply only to Buyer and shall not apply to Buyer's customers or any other third parties.
17. GENERAL LIMITATIONS OF LIABILITY: Notwithstanding any other provision of these Terms and Conditions, in no event shall Custom Power be liable under any claim, demand or action (whether in contract, tort, or otherwise) arising out of or relating to Custom Powers products or services for any special, indirect, incidental, exemplary, or consequential damages, including, but not limited to, loss of anticipated profits, loss of use, or loss from business disruption, regardless of whether or not Custom Power, its employees or agents have been advised of the possibility or likelihood of such damages. Custom Powers total liability for damages arising out of or in connection with Buyer’s purchase of Custom Powers products, whether in contract, tort, or otherwise, shall in no event exceed the purchase price paid as to the specific order to which the claim relates. The parties acknowledge that Custom Power would not sell its products to Buyer without this limitation of liability.
(a) Buyer shall defend and indemnify Custom Power from all liabilities and costs resulting from any suit or proceeding based upon a claim that products infringe upon the right of a third party to the extent such claim arises from Custom Powers compliance with Buyer's designs, specifications, or instructions.
(b) Products purchased from Custom Power are not to be used in critical safety systems (including without limitation life support equipment and devices used for implementation into the body), any such activity or process involving nuclear fission or fusion, or in any other manner not considered a standard and ordinary commercial use. Buyer agrees not to use or sell or transfer the product to others for such purposes, without prior written authorization from Custom Power which Custom Power may withhold in its sole and absolute discretion. If any such use occurs, Custom Power disclaims all liability and will in no event have any liability to Buyer or any third party for personal injury, death or property or other economic damage suffered. Buyer agrees to defend and indemnify Custom Power against any and all attorney’s fees, costs, damage or expense arising out of or related to such liability. As used herein, "liability” means liability of any kind at any time whether in contract, tort (including negligence and strict liability), warranty or otherwise.
19. PATENTS: Custom Power shall have no liability to Buyer if any patent infringement or claim is based upon (i) a modification of the products not approved by Custom Power or (ii) the interconnection or use of the products in combination with other products or devices not made by Custom Power, or (iii) the use of products in other than an application recommended by Custom Power. The above states Custom Powers sole liability for infringement of patents by its products.
20. U.S. GOVERNMENT CONTRACTS: If the products are to be used in the performance of a U.S. Government contract or subcontract, no Government requirements or regulations shall be binding upon Custom Power unless specifically agreed to in writing.
21. CANCELLATION CHARGES:
(a) All requests for cancellation of orders, changing a delivery schedule, or placing an order on hold must be made to Custom Power in writing with the most advanced notice possible, so as to minimize cancellation charges. When a cancellation request is received by Custom Power, then Custom Power will evaluate the cancellation charges that the Buyer shall pay, based on whether the products is standard, non-standard, or a custom battery assembly and how far along the product is through production.
(b) Once Custom Power gives the Buyer the cancellation fee, the Buyer shall send Custom Power written documentation of the cancellation, reflecting the cancellation charges that the Buyer shall pay within 15 days. Custom Power will acknowledge the cancellation in writing to the Buyer. Custom battery assemblies or non-standard products canceled less than 30 days from scheduled shipping day will incur 100% cancellation charges. Buyer agrees to pay all cancellation charges that are included in the cancellation of the order.
22. RETURNS: Returns from incorrect ordered products by the Buyer will have a 25% re-stocking fee and Buyer pays for the freight to return products to Custom Power.
23. EXPORT CONTROL: The parties shall comply with all applicable U.S. export control laws and regulations, including but not limited to the International Traffic in Arms Regulations (ITAR), 22 CFR Parts 120 through 130, the Export Administration Regulations (EAR), 15 CFR Parts 730 through 799, and/or other restrictions imposed by the Treasury Department’s Office of Foreign Asset Controls (OFAC), in the performance of this sale, as well as in the export, resale, and any other dispositions of Custom Power products. The parties further agree that the Buyer will not provide Custom Power with any products, software, technology, or related data or information, which are export controlled pursuant to the export control laws of the United States, including the EAR and the ITAR and any other applicable regulations (“Controlled Materials”) unless Buyer obtains Custom Power’s prior written consent to obtaining such Controlled Materials. Buyer’s request for such consent should be in writing and provide Custom Power with a list of Export Control Classification Numbers (ECCNs) or United States Munitions List (USML) classifications for the Controlled Materials. By providing such a list Buyer certifies that it has (i) conducted proper classification analysis under the EAR and ITAR; or (ii) obtained Official Commodity Classifications (CCATS) from the Bureau of Industry and Security (BIS) or Jurisdiction Classification Rulings from Directorate of Defense Trade Controls (DDTC). Custom Power shall have the right to decline or limit (a) the receipt of Controlled Materials, and (b) any task requiring such receipt. In the event the Buyer sends any Controlled Materials without written approval from Custom Power, Custom Power has the right to immediately terminate this sale agreement. All products manufactured by Custom Power will be classified under ECCN EAR99 unless otherwise specified. No claim or action arising out of Buyer's order or other document pertaining to the goods, whether in contract, tort or otherwise, may be brought by Buyer more than twelve (12) months after the date of shipment of the goods.
(a) If an order is placed in the hands of an attorney for collection or if suit is brought to collect any of the account balance or interest thereon, the Buyer agrees to pay attorney fees and legal costs incurred.
(b) The invalidity, in whole or in part, of any provision herein shall not affect validity of any other provision herein.
(c) Any representation, warranty, course of dealing or trade usage not contained or referenced herein shall not be binding on Custom Power.
(d) No modification, amendment, rescission, waiver or other change in these Terms and Conditions shall be binding on Custom Power unless assented to in writing by its authorized representative.
(e) The rights and obligations of the parties under these Terms and Conditions shall be governed by the substantive laws of the State of California without reference to its conflict of law provisions. The parties hereby irrevocably agree that venue as to any dispute and personal jurisdiction of the parties to such dispute shall be solely and exclusively in the State of California, Courts of the County of Orange, or if applicable, in the Federal District Court for the Central District of California, located in Orange County, California.