AMERICAN CHANGER CORP.’S TERMS AND CONDITIONS OF SALE
All sales by American Changer Corporation. (“Seller”) are expressly made conditional on Buyer’s assent to the terms and conditions set forth herein. In the event that any of the terms or conditions of any purchase order, order confirmation, or other communication of the buyer hereunder (“Buyer”) conflict with any of the terms and conditions set forth herein, these terms and conditions shall govern, and Seller hereby gives notice of its objection to any additional or different terms or conditions in any such purchase order, order confirmation or communication.
2. SHIPMENTS – Seller will use commercially reasonable efforts to meet shipping dates requested by Buyer, but Seller shall not be liable for any direct or indirect costs or damages (including, without limitation, incidental, consequential or other similar damages) resulting from Seller’s failure to meet any shipping dates or other shipping errors.
For any order with indefinite delivery dates, Seller shall have the right to manufacture or procure the goods covered thereby, and hold such goods for Buyer’s account pending receipt of definite shipping instructions. Except as expressly provided otherwise herein, Buyer will be charged for, all material procured, and other costs and expenses incurred by Seller in connection with such order.
3. PRICE – Buyer shall pay (a) the purchase price for all goods purchased hereunder as determined by Seller and all other amounts payable hereunder (including, without limitation, custom design and artwork charges, charges for packaging, handling or transportation, charges for shipping, storage, and duties, tariffs, taxes and other government-imposed fees), plus (b) if Buyer acquires a Payment System, all fees and other amounts payable pursuant to the License Agreement (including, but not limited to, fees for the use of a Payment System, cloud hosting, and software maintenance, support and development. All such payments shall be calculated and payable in U.S. dollars, unless otherwise stated in writing by Seller.
4. CREDIT – Any credit extended by Seller to Buyer in connection with the purchase of goods hereunder is subject to the discretion of Seller. If Seller determines that Buyer’s credit is unsatisfactory at any time for any reason, Seller reserves the right to suspend deliveries of such goods, require payment in advance, and take any other actions as Seller determines, in its sole discretion, to be advisable. Without limiting the generality of the preceding sentence, Seller may require that Buyer provide a valid credit or debit card number, the security code (or other similar number) of such credit or debit card, the expiration date of such credit or debit card and or any other information reasonably relating to the use of such credit or debit card.
5. TERMS OF PAYMENT – Unless otherwise agreed in writing by Seller, Buyer’s payment terms for each Payment System shall be as follows: (a) 25% of the entire purchase price, plus all taxes, shipping and other amounts payable by Buyer, with respect to such Payment System upon Seller’s receipt of Buyer’s order; (b) 65% of the entire purchase price, plus all taxes, shipping and other amounts payable by Buyer, with respect to such Payment System prior to the shipment of such Payment System; and (c) the balance thereof prior to the earlier of (i) 30 days after shipment of such Payment System to Buyer or (ii) the day on which such Payment System is turned on by Buyer (or Buyer’s designee). In all other cases, Buyer’s payment terms shall be stated on each invoice submitted by Seller to Buyer. In the absence of such terms, invoices for goods and services (not including a Payment System) shall be due and payable net thirty (30) days from the invoice date or shipping date, whichever is earliest. Invoices are payable in U.S. dollars only, unless otherwise expressly noted on the invoice. Net due dates are based on “calendar days” from the invoice date. Any discounts (a) apply only (i) if set forth in a writing signed by Seller and (ii) to the net purchase price for goods, and (b) do not apply to any other invoice charges (including, without limitation, any applicable charges for packaging, handling or transportation).
If any amount is not paid when due, Seller shall have the right, in addition to any other right or remedy available to it, to charge interest on such overdue amount at a rate equal to the lesser of 1.5% per month or the maximum rate permitted by law. In addition, if it becomes necessary to place Buyer’s account with an attorney, agency or other third party for collection, Buyer shall be responsible for all costs and expenses incurred by Seller in connection therewith (including, without limitation, court costs, attorneys’ and/or collection fees, incurred by Seller).
ALL PAYMENTS, WHETHER UNDER THE STANDARD PAYMENT TERMS OR OTHERWISE, SHALL BE CONSIDERED RECEIVED BY SELLER AS FOLLOWS: (A) FOR PAYMENTS BY CHECK, WHEN THE CHECK IS RECEIVED AT SELLER’S DESIGNATED PAYMENT LOCATION AND CLEARED BY SELLER’S FINANCIAL INSTITUTION, (B) FOR PAYMENTS BY ELECTRONIC FUNDS TRANSFER, THE BUSINESS DAY IMMEDIATELY FOLLOWING THE DAY ON WHICH THE FUNDS ARE IMMEDIATELY AVAILABLE TO SELLER.
If Buyer (a) becomes insolvent or otherwise unable to pay its debts as they become due, files or has filed against it a petition in bankruptcy, makes any assignment for the benefit of creditors, or has a receiver or trustee appointed for it or its property, (b) takes action to liquidate or otherwise cease doing business as a going concern, (c) undergoes a change in ownership, (d) sells or otherwise transfers a substantial portion of its assets, (e) fails to provide adequate assurance or security for credit extended as requested by Seller, or (f) takes any other action that Seller determines, in its sole discretion, adversely impacts the conditions under which credit was extended, then all amounts outstanding from Buyer hereunder shall at Seller’s option become immediately due and payable.
6. TAXES – All federal, state, provincial, or other local sales, use or other taxes, duties, tariffs, import fees and other government- imposed fees, or other assessments imposed on goods sold hereunder, or on the manufacture or delivery thereof, shall be payable by Buyer.
7. MISCELLANEOUS EXPENSES – Unless specified in writing to the contrary by Seller, all freight, insurance, storage, and other similar charges will be paid by Buyer. Seller reserves the right to ship orders at the most economical rate or other appropriate rate as determined by Seller in its sole discretion. If Buyer requests special packaging, handling and/or transportation, any additional costs incurred shall also be charged to Buyer on an invoice. In the event of any general freight increase or any governmental rule, regulation or other mandate that results in increased freight costs, Seller may increase its price without any advance notice to reflect such additional costs. The increased price shall apply to all goods shipped on or after the effective date of such increase, rule, regulation or other mandate. Information regarding freight charges shall be limited to Seller providing the freight vendor and shipment tracking number to the Buyer upon invoicing.
8. RISK OF LOSS; DELIVERY – All shipments of goods hereunder shall be F.O.B. Seller’s place of shipment. Title to, and the risk of any damage to, or loss, or shortage of such goods, shall pass to Buyer upon delivery of such goods by Seller to the carrier. Any claims for damage or loss should be filed by Buyer with the carrier in writing immediately upon receipt or signed delivery receipt noting such loss or damage. In no event shall Seller be liable for damage or loss to a shipment caused by any carrier.
9. SERVICES – Upon request, Seller may furnish Buyer with (a) advice, recommendations and services with respect to the use of any goods purchased hereunder (“Use Advice”), and (b) to the extent set forth in a writing sent from, or signed by, Seller (including, without limitation, an invoice or order confirmation sent from Seller), Seller shall (i) provide customized changes to such goods (“Customized Changes”), and (ii) render assembly services with respect to such goods (“Assembly Services”) and, after such goods are assembled and only upon the request of Buyer, make such goods reasonably available to Buyer only for the purpose of testing such goods to confirm they are in good working condition. Buyer acknowledges that all Use Advice and Customized Changes are (a) provided “as is” and without any representation or warranty of any kind, and (b) relied upon by Buyer at Buyer’s risk. Seller assumes no liability or responsibility for any Use Advice or Customized Changes, or any results obtained from Buyer’s reliance thereon. Seller represents and warrants to Buyer that all Assembly Services will be rendered by Seller (or its designee) in a reasonable professional manner.
To the extent Buyer requests that Seller come to Buyer’s location, Buyer represents and warrants that Seller’s employees and/or agents will be provided a safe working environment and the Buyer will comply with all applicable federal, state, provincial or local laws or regulations with respect to providing a safe work place.
Nothing herein shall require Seller to provide any Use Advice, Customized Changes or Assembly Services, except that Seller shall only provide Customized Changes and Assembly Services to the extent set forth in a writing sent from, or signed by, Seller (including, without limitation, an invoice or order confirmation sent from Seller).
10. LIMITED WARRANTY AND EXCLUSIVE REMEDY – The goods sold hereunder are subject to the terms of Seller’s Limited Warranty provided with such goods or otherwise available from Seller, or if there is no such warranty for such goods, the terms set forth herein. In the event of any inconsistency between such warranty provided with such goods or otherwise available from Seller, and the warranty set forth herein, the former shall govern.
Seller warrants that all new goods are free from defects in material or workmanship in normal use for one year from the date of shipment by Seller; provided, however, that such warranty will be extended for a second year for Bill Validators (excluding model nos. 650, 68, 501 and BA-50). In addition, Seller warrants that all refurbished goods are free from defects in material or workmanship in normal use for six months from the date of shipment of such goods by Seller.
Seller will furnish, without charge, F.O.B. Fort Lauderdale, repaired or replacement goods for any defective goods qualifying for repair or replacement under the terms of any applicable warranty. Any transportation, diagnosis calls, or similar expenses are not covered by any applicable warranty and Buyer shall remain responsible therefor. The warranty for any replacement part will only apply to the remainder of the warranty period for the goods to which it applies.
No warranty on goods hereunder may be modified without the written consent of an Executive Officer of Seller.
To make a claim under any applicable warranty, Buyer must call Seller’s Service Department and provide the model number and serial number of the defective goods. If the goods
were purchased from a reseller, Buyer must also provide the name, address and telephone number of the reseller. Seller reserves the right to request proof that the reseller purchased the goods directly from the Seller. If the goods were not purchased by the reseller directly from Seller, any warranty is null and void.
Any provision of this Agreement to the contrary notwithstanding, no warranty hereunder covers damage caused by: (a) shipping or physical abuse; (b), misapplication or misuse, including improper installation, startup, storage, or failure to comply with any instructions for use set forth in the owner’s manual (or other similar writing) supplied with the goods; (c) any use, storage or operation of the goods in a manner that fails to comply with all applicable laws, rules and regulations (including, without limitation, any local labeling requirements or labeling required under California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (also known as “Proposition 65”) and its implementing regulations); (d) failure to perform necessary maintenance and cleaning in accordance with the owner’s manual (or other similar writing) provided with the goods; (e) power surges, improper electrical supply and/or lightning strike; (f) operation, use or storage of goods in weather or outdoor conditions that do not comply with the guidelines set forth in the owner’s manual (or other similar writing) supplied with the goods; (g) fires, floods, or other casualty or Acts of God outside of Seller’s reasonable control; or (h) any Use Advice or Customized Changes.
Any applicable warranty is void if: (a) repairs are performed, or replacement goods are provided, by anyone other than Seller or a qualified repair technician authorized by Seller; (b) the goods were purchased in a used condition or not in the original packaging; (c) the goods have any defects or damage due to any alterations, or damage caused by improper electrical supply, shipping and handling, fire, flood, misuse, vandalism, or any other condition or event outside of Seller’s reasonable control, or the goods are used, stored or operated in a manner that fails to comply with any applicable law, rule, or regulation (including, without limitation any local labeling requirements or labeling required under California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (also known as “Proposition 65”) and its implementing regulations); (d) the failure to clean and maintain goods in accordance with the owner’s manual (or other similar writing) supplied with the goods; (e) any goods are operated, used, or stored in weather or outdoor conditions which do not comply with the guidelines set forth in the owner’s manual (or other similar writing) supplied with the goods; or (f) Buyer has failed to perform any obligation pursuant to these terms and conditions or any other agreement between Buyer and Seller (including, without limitation, any such obligation to pay any amount becoming due pursuant to these terms and conditions or any other such agreement.)
Buyer is responsible for: (a) using the goods supplied by Seller in accordance with the installation, start-up, use, storage, inspection, and service requirements, and all other instructions set forth in the owner’s manual (or other similar writing) supplied with the goods; (b) providing normal cleaning and maintenance in accordance with the owner’s manual supplied with the goods; (c) operating, using, and storing all goods in accordance with the owner’s manual (or other similar writing) supplied with the goods and in compliance with all applicable laws, rules, or regulations (including, without limitation, any local labeling requirements or labeling required under California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (also known as “Proposition 65”) and its implementing regulations; (d) contacting Seller during the warranty period to obtain a Return Material Authorization to make a claim under any applicable warranty; (e) providing proof of purchase if requested by Seller, and if the goods were purchased from a reseller, the name, address, and telephone number of the reseller; (f) providing any other information Seller may reasonably request to confirm that all goods are covered by any warranty; (g) paying for any repairs or replacement of goods outside the scope of any applicable warranty; and (h) paying any shipping costs.
THE APPLICABLE WARRANTY CONSTITUTES THE EXCLUSIVE REMEDY OF SELLER FOR ANY DEFECTIVE GOODS AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.
EXCEPT AS EXPRESSLY STATED HEREIN, SELLER MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY GOODS. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, SELLER EXPRESSLY DISCLAIMS (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND (B) ANY REPRESENTATION OR WARRANTY RELATING TO THE PROTECTION OF, OR THE THEFT, MISAPPROPRIATION OR MISUSE OF, ANY PERSONAL INFORMATION OF AN END USER OF ANY GOODS (INCLUDING, WITHOUT LIMITATION, ANY CREDIT CARD OR DEBIT CARD NUMBERS, PERSONAL IDENTIFICATION NUMBERS, PERSONAL PASSWORDS OR PASSCODES, OR OTHER SIMILAR PERSONAL INFORMATION OF SUCH END USER).
11. LIMITATIONS OF DAMAGES – TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SELLER SHALL NOT HAVE ANY LIABILITY ARISING OR RESULTING FROM THE FAILURE TO PERFORM UNDER THESE TERMS AND CONDITIONS, OR IN CONNECTION WITH THE SALE OR USE OF GOODS HEREUNDER, FOR (A) ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR OTHER SIMILAR DAMAGES OR LOSSES, OR (B) ANY DIRECT DAMAGES OR LOSSES IN EXCESS OF THE PURCHASE PRICE (NOT INCLUDING ANY FREIGHT, INSURANCE, TAXES OR OTHER SIMILAR AMOUNTS) OF ANY GOODS GIVING RISE TO SUCH DAMAGES OR LOSSES, REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE.
BUYER IS SOLELY RESPONSIBLE FOR INSTALLING, STORING, OPERATING AND MAINTAINING ALL GOODS PURCHASED HEREUNDER IN COMPLIANCE WITH ALL APPLICABLE LAWS, RULES AND REGULATIONS, AND ANY LOCAL LABELING REQUIREMENTS OR LABELING REQUIRED UNDER CALIFORNIA’S SAFE DRINKING WATER AND TOXIC ENFORCEMENT ACT OF 1986 (ALSO KNOWN AS “PROPOSITION 65”) AND ITS IMPLEMENTING REGULATIONS. IN NO EVENT SHALL SELLER BE LIABLE FOR BUYER’S FAILURE TO INSTALL, STORE, OPERATE OR MAINTAIN ALL GOODS IN COMPLIANCE WITH ANY APPLICABLE LAW, RULE OR REGULATION.
12. DISPUTES – Any civil action arising in connection with these terms and conditions or any goods purchased hereunder may only be brought against Seller within one (1) year after the date the cause of action accrued. If Buyer fails to commence any such action with such one (1) year, its right to commence such action shall be barred.
These terms and conditions shall be governed by and construed in accordance with, the laws of the United States and the State of Florida, without giving effect to its conflicts of law provisions. The courts located in Broward County, Florida shall have exclusive jurisdiction of all matters relating to or arising from these terms and conditions or any sale of goods by Seller to Buyer, and Buyer hereby consents to the jurisdiction of such courts and waives any right to object TO any such court being an inconvenient forum.
13. RETURN OF GOODS – No goods may be returned by Buyer to Seller without the prior approval of Seller, which approval may be withheld by Seller, in its discretion. Upon receiving such approval, all returned goods must arrive at the point of return designated by Seller in salable condition before any credit will be issued.
14. CHANGE ORDERS – No orders hereunder may be revised or canceled by Buyer without the prior written consent of Seller.
15. FORCE MAJEURE – Seller shall not be liable for delays or failure to perform hereunder for any cause beyond Seller’s reasonable control (including, without limitation, fire, flood or other casualty, strikes, lockouts or other labor trouble; riots or civil disturbances; shortage of labor, materials, fuel production facilities, equipment or other requirements for production, delay or interruptions in transportation or utilities, war, blockades, sanctions, embargoes or other similar acts, and legal restrictions or other actions of any governmental authority).
16. FAIR LABOR STANDARDS ACT – Seller certifies that all goods sold hereunder that were produced in the United States were produced in compliance with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act, as amended, and all regulations and orders of the United States Department of Labor issued under Section 14 thereof.
17. EXPORT CONTROL – Any goods supplied by Seller hereunder may be subject to various export laws and regulations of the United States. Buyer is responsible for complying with all such laws and regulations. If any federal, state or local law requires export authorization for the export (or re- export) of any goods hereunder (or associated technology), no goods shall be exported (or re-exported) until such authorization is obtained, regardless of any delivery date specified in any order for goods or otherwise. If any such authorization is denied or otherwise not obtained, Seller shall (a) be relieved of any further obligation relating to such goods and (b) not have any liability to Buyer or any third party for the failure to obtain such authorization. In addition, Seller will not comply with any boycott-related requests, except to the extent permitted by all applicable law and then only at Seller’s sole discretion.
18. COPYRIGHT/TRADEMARK – To the extent that any words, pictures, designs, or any combination thereof contained in any art work provided by Buyer to Seller, are subject to copyright, trademark, service mark, trade dress or other intellectual property protection, whether by statute or common law, Buyer represents and warrants to Seller that Buyer is the owner or authorized licensee of any such intellectual property. Buyer shall defend, indemnify and hold harmless Seller from all claims arising from, or relating to, any alleged misuse or infringement (including, without limitation, contributory infringement of any intellectual property). Buyer grants to Seller an irrevocable license to display, photograph, video tape or otherwise use any such art work in its promotional and advertising materials, and no such use shall constitute infringement of any such intellectual property.
20. SEVERABILITY – Whenever possible, each provision of these terms and conditions shall be interpreted in such a manner as to be effective and valid under applicable law. If, however, any such provision shall be prohibited by or invalid under such law, it shall be deemed modified to conform to the minimum requirements of such law, or if for any reason it is not deemed so modified, it shall be prohibited or invalid only to the extent of such prohibition or invalidity without the remainder thereof, or any other such provision, being prohibited or invalid.
21. GENERAL – No agreement by Seller to supply goods to Buyer may be assigned or transferred (by operation of law or otherwise) by Buyer without the prior written consent of Seller, and any purported assignment made without such consent of Seller, and any purported assignment made without such consent, shall be null and void. For purposes of these terms and conditions, an assignment shall include (a) the sale or other transfer of a controlling interest in the stock, membership interest or other equity of Buyer, (b) any merger of Buyer with or into another entity, and (c) the sale of all, or substantially all, of Buyer’s assets to a third party. These terms and conditions shall inure to the benefit of, and be binding upon, Seller and Buyer and their permitted successors and assigns.
Seller may terminate any obligation to supply goods to Buyer immediately in the event that Buyer becomes insolvent or otherwise unable to pay its debts as they become due, is declared insolvent, files or has filed against it a petition in bankruptcy, makes any assignment for the benefit of creditors, or has a receiver, guardian, conservator, trustee in bankruptcy, or similar official appointed by a court of competent jurisdiction to take charge of all or any part of its property.
No third party is a beneficiary of these terms and conditions, and only a party to these terms and conditions can enforce any right or remedy hereunder. These terms and conditions do not create an agency, partnership or other similar relationship, and the parties shall at all times be independent contractors. No party may incur any indebtedness, liability or obligation on behalf of the other party, unless agreed to by such other party in a writing signed by such other party.