SOUND TERMS AND CONDITIONS OF SALE
1. General. These terms and conditions are the commercial terms of purchase of all products from Sound (“Sound”) and apply to all purchases from Sound by any purchaser with notice however gained (“Purchaser”) including the use of Sound’s website. Sound’s offer to sell Sound products to Purchaser is expressly limited to and conditioned on Purchaser’s acceptance of these terms and conditions and those set forth in any applicable Sound- order summary, purchase order or purchase agreement. No additional or different terms or attempted exclusions or modifications (by way of order summary, acceptance, confirmation, communication, course of performance or otherwise, all of which may hereafter be referred to jointly and severally as “Reply”) shall be effective against Sound in the absence of the express written consent of Sound; any attempt by Purchaser to add, exclude or modify any terms is objected to and will be of no force or effect. Neither the delivery of this document nor anything contained herein shall be construed to be an acceptance or confirmation of any prior or subsequent Reply; this document shall be a rejection and counter-offer with respect to any such Reply. The contract between Sound and Purchaser, including these terms and conditions, which are incorporated in, and are a part of each order summary, purchase order, requisition, shipping instruction and other document, whether expressed in written form, by electronic data interchange or other tangible format, relating to Sound products purchased by Purchaser from Sound, shall be referred to as the “Agreement.”
2. Products: Products covered by this Agreement are those identified in any applicable order summary, purchase order, requisition, shipping instruction and other document, accepted by Sound, and the quantities thereof, are only those specifically identified therein. Sound may make changes to products that do not adversely affect their form, fit or function without the prior approval of or notification to Purchaser. Sound will give Purchaser at least sixty (60) days prior written notice if Sound makes changes to products that affect their form, fit or function or discontinues any products prior to fulfillment hereunder. In such event, Sound will use reasonable efforts to find a substitute Sound product acceptable to Purchaser, in Purchaser’s sole discretion, but, failing that, then either party may cancel any Purchaser purchase order for products to the extent not previously fulfilled by giving the other notice, and neither party will be liable to the other for damages resulting from that cancellation.
3. Price and Payment. Prices are as set forth in the applicable order summary, quotation, purchase order, or purchase agreement or as otherwise published by Sound from time to time. All prices are exclusive of all taxes and duties, including without limitation all sales, excise or use taxes. Unless otherwise provided, Sound may change prices for any products, whose estimated delivery date is more than ninety (90) days after the date set forth in the applicable order summary, quotation, purchase order, or purchase agreement, by giving Purchaser prior notice. If because of any price increase, Purchaser does not wish to purchase products previously ordered, then Purchaser may, as its sole remedy, cancel this Agreement to the extent not previously fulfilled by giving Sound notice within ten (10) days of that notice. All prices for products, services, shipping, etc., are in US. dollars and subject to change without notice. Payments may be made by check, money order, credit card or electronic transfer in U.S. funds. All payments and credit memoranda will be credited to customer’s account. Where payment is made by credit card, such payment is subject to the approval of the financial institution issuing the credit card and may be subject to applicable fees. Sound shall not be liable in any way if such financial institution refuses to accept or honor the credit card for any reason. All payments should be remitted to the address shown on the statement or invoice, including customer account number and/or invoice number to ensure appropriate application. A twenty-five dollar ($25.00) fee will be charged for all returned checks. Sound shall have no liability or other responsibility to customer for any financing arrangements (including, but not limited to, loans) made by customers with third party lenders to purchase products from Sound.
4. Taxes. The prices for products indicated in this Agreement exclude all taxes, including, but not limited to, sales, excise or use taxes. Purchaser shall pay all sales, use, ad valorem, excise and/or any other taxes imposed on either party by virtue of this Agreement, except for taxes based on Sound’s net income. Sound will invoice Purchaser for any taxes Sound is legally obligated to collect from Purchaser. Purchaser agrees to pay, and to hold Sound harmless from, all taxes described in this paragraph.
5. Finance Charge/Costs of Collection. Any amount not paid when due shall accrue a late charge at a rate of one and one-half percent (1.5%) per month (eighteen percent (18%) per year), or the maximum rate provided by law, whichever is less. If Purchaser is delinquent in paying any amount owed to Sound by more than ten (10) days, then without limiting any other rights and remedies available to Sound under the law, in equity, or under contract, Sound may (i) suspend production, shipment and/or deliveries of any or all products purchased by Purchaser, or (ii) by notice to Purchaser, treat such delinquency as a repudiation by Purchaser of the portion of the Agreement not then fully performed, whereupon Sound may cancel all further deliveries and any amounts unpaid hereunder shall immediately become due and payable. Purchaser shall pay all collection costs incurred by Sound including, but not limited to, collection agency fees, attorneys’ fees and court costs. Purchaser hereby represents to Sound that Purchaser is now solvent and agrees that each acceptance of delivery of the products sold hereunder shall constitute reaffirmation of this representation at such time.
6. Delivery. If delivery of products is delayed by Sound, Purchaser will not be excused from its obligation to pay for products when finally delivered or from any of its other obligations hereunder. However, if Sound delays delivery of products by more than thirty (30) days after the delivery date, then Purchaser may, as its sole remedy, cancel any Purchase order for products to the extent not previously fulfilled by giving Sound notice within ten (10) days, and neither party will be liable to the other for damages resulting from that cancellation.
7. Shipment. Sound will choose the carrier for shipping products, and all shipments of products to Purchaser will be “F.O.B. Destination Freight Prepaid and Add” Purchaser specified locations. Actual costs of any special or expedited shipping and handling requested by Purchaser will be invoiced to and paid by Purchaser.
8. Title; Risk of Loss. Title and risk of loss of or damages to any products will pass to Purchaser upon Sound’s delivery of the products to the location designated by Purchaser.
9. Force Majeure. Neither party shall be liable for any damages or delays caused by or in any manner arising from fires, floods, accidents, riots, acts of God, war, governmental interference or embargoes, strikes, labor difficulties, any shortage of labor, fuel, power, materials or supplies, transportation delays, delays in deliveries by Sound’s vendors or any other cause or causes (whether or not similar in nature to any of these hereinbefore specified) beyond such party’s control.
10. Limited Warranty. Except as expressly set forth in the applicable Sound Assurance Premier Warranty & Service Program provided as part of the purchase of a qualifying product, all products, as well as hardware and software related thereto, are sold by Sound hereunder on an “As Is” basis without warranty of any kind, whether express, implied, statutory or otherwise. ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED BY SOUND. NO ORAL OR WRITTEN INFORMATION PROVIDED BY SOUND SHALL CREATE A WARRANTY UNLESS EXPRESSLY INCORPORATED INTO THESE TERMS AND CONDITIONS.
11. LIMITATION OF LIABILITY. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT, STRICT LIABILITY, STATUTE OR OTHERWISE, SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES RELATED TO ANY PRODUCT OR THESE TERMS & CONDITIONS (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST BUSINESS PROFITS, LOSS OF DATA, INTERRUPTION IN USE OF EQUIPMENT OR UNAVAILABILITY OF DATA), INCLUDING CLAIMS OF ANY THIRD PARTY. SOUND’S ENTIRE LIABILITY FOR BREACH OF WARRANTY, NEGLIGENCE OR OTHER CAUSE OR THEORY IS LIMITED TO REPAIR OR REPLACEMENT OF DEFECTIVE PRODUCTS UPON TIMELY RECEIPT OF NOTICE WITHIN ONE YEAR FROM DATE OF DELIVERY REGARDLESS OF WHETHER SOUND HAS BEEN ADVISED OF THE POSSIBILITY OF OTHER DAMAGES. IN NO EVENT SHALL SOUND’S LIABILITY FOR BREACH OF ANY WARRANTY HEREUNDER EXCEED THE ACTUAL LOSS OR DAMAGE SUSTAINED BY PURCHASER, UP TO THE AGGREGATE PURCHASE PRICE OF THOSE PRODUCTS WITH RESPECT TO WHICH SUCH CLAIM IS MADE.
13. Trademarks. Purchaser acknowledges the validity of Sound’s and other third parties’ tradenames and trademarks appearing on products, and Purchaser will have no right to or interest in any trademarks or tradenames owned, used or claimed now or in the future by Sound or such third parties.
14. Software. Any software furnished by Sound under this Agreement is done so on a non-transferable license-to-use basis and all right, title and interest therein is and will remain vested exclusively in Sound or its licensors. Purchaser will not decompile, disassemble, or otherwise derive the source code of any software furnished by Sound nor will Purchaser make any copies of such software, except that Purchaser may make one (1) copy of each such software product for backup purposes only. Purchaser will return or destroy all copies of software upon cessation of related product usage. All software furnished by Sound is to be considered confidential information and will be held by Purchaser in strict confidence and disclosed on a need- to-know basis, or as required by law, to only those of its employees who have agreed in writing to maintain the confidentiality of Purchaser provided third party confidential information.
15. Notices. Any notice given under this Agreement will be deemed to be sufficiently given when sent in writing by certified or registered mail or by facsimile or other rapid form of transmission where receipt is acknowledged to the parties at their respective addresses set forth herein or as those addresses may be subsequently changed by giving notice. The date of mailing or transmission of any notice hereunder will be deemed the date on which that notice has been given.
16. Waiver. No failure and no delay in exercising, on the part of any party, any right under the Agreement will operate as a waiver hereof, nor will any single or partial exercise of any right preclude the further exercise of any other right. No course of dealing or course of performance may be used to evidence a waiver or limitation of Purchaser’s obligations under this Agreement.
17. Assignment. Purchaser may not assign or delegate its rights or obligations under this Agreement without the prior written consent of Sound. Sound may assign its rights and obligations under this Agreement without Purchaser’s prior written consent.
18. Relationship of the Parties. Sound and Purchaser are independent contracting parties. Nothing in this Agreement makes either party the agent or legal representative of the other party for any purpose whatsoever, nor grants either party any authority to assume or create any obligation on behalf of or in the name of the other party.
19. Headings. The article and section headings contained in this Agreement are inserted for convenience only and will not affect in any way the meaning or interpretation of this Agreement.
20. Governing Law. This Agreement is to be governed by and construed in accordance with the internal laws of the State of California, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of California or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of California. All actions relating to this Agreement shall be venued solely within the County of Sand Diego, State of California, and each party hereto irrevocably submits to the jurisdiction of the state and federal courts sitting in the County of San Diego, State of California, for the adjudication of any disputes arising hereunder.
21. Attorneys’ Fees. If any action is brought to enforce or interpret any part of this Agreement or the rights or obligations of any party, the prevailing party in such action shall be entitled to recover as an element of such party’s costs, in addition to any damages to be awarded to it, reasonable attorneys’ fees and expenses, and court costs.
22. Severability. If any provision of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such provision will be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of this Agreement will remain in full force and effect.
23. Entire Agreement. This Agreement supersedes terminates and otherwise voids any and all prior written and/or oral agreements between the parties with respect to products. There are no warranties, representations, or understandings of any kind or description whatsoever made by either party to the other, except such as are expressly set forth herein. This Agreement may be modified only by a written instrument signed by both parties making specific reference hereto.