Standard Terms and Conditions
The following terms and conditions (these “Terms and “Conditions”) will apply to all transactions involving the sale of goods or services (either, “Goods” or “Services” (as applicable)) by and between Axia Sourcing ("Axia") and the Customer (“Customer”) identified on the Purchase Order (as defined below) attached hereto. Goods or Services, or both, shall include all such items and services identified as such on the attached Purchase Order.
- Purchase Order.
Axia and Customer may create binding contracts for the purchase and sale of Goods or Services, or both, by exchanging one or more written or electronic communications by any commercially reasonable means showing agreement as to the following items: precise description of Goods, price, quantity, date of delivery, means of shipment, and (as applicable) a description of the Services to be provided by Axia (the “Purchase Order”). The terms of any such Purchase Order between Customer and Axia will be comprised exclusively of the Purchase Order and these Terms and Conditions, and any other applicable policies, manuals, guidelines, specifications, terms and other instructions which have been or may from time to time hereafter be furnished to Customer by Axia. Each Purchase Order shall be deemed separate and severable and not part of any other such Purchase Order. If there is a conflict between the terms of these Terms and Conditions and any other document(s) which comprise a contract, the specific terms of a written Purchase Order (e.g. quantity, price, product specifications, service description) shall have priority, and thereafter, these Terms and Conditions shall control.
- Entire Agreement; Change Orders.
With respect to any such Purchase Order, the terms identified in the applicable Purchase Order and these Terms and Conditions will constitute the complete and exclusive statement of the terms and conditions between Customer and Axia, and supersede and merge all prior proposals, understandings and all other agreements, oral and written, between Customer and Axia relating to the Purchase Order, these Terms and Conditions, or any transaction involving the sale of Goods or Services, or both. The Purchase Order and these Terms and Conditions may not be amended, modified or altered except by a written instrument duly executed by an authorized representative of both Customer and Axia, and any proposals for any additional or different terms contained in communications from Customer which are not signed by Axia are hereby expressly rejected by Axia without further notification and shall not constitute a part of the Purchase Order or these Terms and Conditions. In addition, no course of dealing or manner of performance will constitute a waiver of or modify any rights of Axia under the Purchase Order or these Terms and Conditions.
- Invoicing, Packaging, and Labeling.
Axia shall ensure that all Goods and Services will be invoiced, packaged, and labeled in accordance with the terms of the Purchase Order relating thereto. No charge will be made by Axia for any packing, crating, freight or express charges, cartage or containers for any Goods unless set forth in the Purchase Order or otherwise agreed to in writing by Customer and Axia.
- County of Origin; Importer of Record.
If Axia is providing manufacturing logistics services, then Axia shall be deemed the importer of record and shall provide to Customer, upon reasonable request and as soon as reasonably practicable, all documentation reasonably required to substantiate the origin of the Goods. If Axia is not providing manufacturing logistics services, in no event shall Axia be (i) deemed the importer of record in respect of the Goods or (ii) required to provide any documentation to substantiate the origin of the Goods.
Axia shall deliver the Goods substantially in accordance with the delivery schedules and to the location(s) set forth in the Purchase Order. Axia shall notify Customer in writing of any material delay in respect of the Purchase Order and, in such event, Axia shall use commercially reasonable efforts to have the Goods delivered in accordance with any amended delivery schedule agreed to with Customer. Notwithstanding the foregoing, in the event of any delay in respect of the Purchase Order that is the direct or indirect result of the actions of inactions of the Third Party Manufacturer (as defined below), Axia shall be permitted to extend the delivery schedule for up to an additional ninety (90) business days without being in breach of, or having any liability under, these Terms and Conditions or the Purchase Order. Transfer of title and risk of loss shall pass at the time of delivery to Customer's distribution facility. Multiple or split shipments for one Purchase Order are permitted, as determined by Axia in its sole and absolute discretion. Axia shall notify Customer in writing if Axia intends to ship in multiple or split shipments.
- Representations and Warranties.
Each party hereto represents to such other party that each Purchase Order: (1) will constitute the legal, valid and binding obligation of such party and (2) is enforceable in accordance with its terms. Customer represents and warrants its understanding that Axia shall be permitted to outsource the production and manufacturing of the Goods to a third-party (each a, “Third Party Manufacturer”), and that if any Goods are wholly or partially manufactured by a Third Party Manufacturer, Axia shall (to the extent commercially reasonable and legally permitted) and does hereby assign to Customer the benefit of any warranties or other rights conferred upon or otherwise available to Axia as against the Third Party Manufacturer, including but not limited to any contractors, subcontractors and suppliers with respect thereto. Customer acknowledges and agrees that Customer is acquiring the Goods on an “as is” basis, with all faults, and without any warranty (unless expressly set forth in the applicable Purchase Order), express or implied, and (b) unless Axia is providing the quality control Services outlined in Section 8 hereof, neither Axia nor any agents, representatives, or employees of Axia have made any representations or warranties, direct or indirect, oral or written, express or implied, to Customer with respect to the condition of the Goods, their fitness for any particular purpose, or their compliance with any laws, and Customer is not aware of and does not rely upon any such representation(s), provided however, if Customer engages Axia to provide quality control Services (consistent with the terms and conditions with respect thereto outlined below), Axia represents and warrants that the Goods (or such portion thereof for which quality control Services are requested) shall be delivered materially consistent with the specifications set forth in the Purchase Order.
- Non-Conforming Goods; Return Procedures.
If Axia provides quality control Services, and the Goods that are delivered to Customer are not materially consistent with the specifications set forth in the Purchase Order (“Non-Conforming Goods”), then Customer shall be required to notify Axia in writing within thirty (30) calendar days of the delivery (“Notice of Non-Conformity”) of such Goods. If Customer does not notify Axia in writing within thirty (30) calendar days of delivery of the Goods, then such Goods shall be deemed accepted by Customer consistent with the requirements set forth in the Purchase Order. Upon receipt of a properly delivered Notice of Non-Conformity, Axia shall issue to Customer a Return Material Authorization, together with an address to return the purportedly Non-Conforming Goods. Upon receipt of the purportedly Non-Conforming Goods, and within thirty (30) calendar days thereof, Axia shall respond with a disposition statement in respect of the purportedly Non-Conforming Goods with one of the following status options: (1) credit issued for “X” number of units; (2) replacement Goods (to be shipped on a commercially reasonable timeline) for “X” number of units shall be provided at Axia’s cost and expense; or (3) no problem found and the purportedly Non-Conforming Goods are deemed fully conforming with the specifications set forth in the Purchase Order and returned to Customer at Customer’s sole cost and expense.
- Quality Control Services.
At the request of Customer, Axia shall perform such acts or services for the sole and exclusive purpose of assuring the Goods are manufactured materially consistent with the specifications set forth in the Purchase Order. At the election of Customer, Axia may perform the following Services:
- Pre-production facility inspection;
- Quality control of the Goods during the manufacturing process; and
- Pre-shipment inspections, and finished-product quality control.
Axia expressly reserves the right to act in its sole and absolute discretion in the provision of the Services. Axia shall be permitted to accept or decline a request to perform certain Services, and Axia cannot be held liable for declining a request for Services that (a) is outside the scope described in the Purchase Order or (b) requires Axia to obtain certain governmental approvals. Axia endeavors to perform the Services in a professional and timely manner, in accordance with professional practice and in compliance with: (X) Customer’s express instructions with respect to professional standards, trade custom, or particular use as set forth in the Purchase Order, as the foregoing relates to the Goods, and (Y) such methods and standards of practice as Axia shall consider appropriate in light of the technical and operational nature of the Goods which are the subject of the Services. As soon as reasonably practicable (as determined by Axia in its sole and absolute discretion), upon completion of the Services, Axia may provide Customer with an audit and/or inspection report with respect to the Services performed.
- Customer’s Obligations and Undertaking.
In respect of the performance of Services, Customer shall be required to:
- Take all reasonable steps to ensure that Axia has access to the site and Goods which are the subject of the Services;
- Provide Axia with all information, samples, specifications and documents necessary for Axia to perform the Services in a timely manner, but in no event less than forty-eight (48) hours prior to the performance of the Services by Axia;
- Advise Axia of the date and time on which the Services are to be performed; and
- Render all commercially reasonable assistance to Axia to be sure Axia can perform the Services in a timely manner.
- Price; Payment Terms.
In no event will Axia be allowed to assess or charge any extra charges of any kind in excess of such amounts outlined in the Purchase Order unless otherwise agreed in writing by Customer (except specifically in the case of duties, tariffs, or charges upon import due to changes in duty rates or import laws, such duties, tariffs, or charges will be invoiced by Axia to Customer, as a surcharge upon the arrival of the Goods into the United States of America). All payments made pursuant to each Purchase Order and these Terms and Conditions shall be in U.S. Dollars with payment occurring as set forth in the Purchase Order.
- Force Majeure.
The Purchase Order and these Terms and Conditions may be cancelled by Axia, who shall not incur any liability or obligation whatsoever in respect thereof, or Axia may at its option suspend shipments of the Goods in whole or in part at any time, in the event the performance of the Purchase Order is rendered in whole or in part (as determined by Axia in its sole and absolute discretion), impossible or impractical by reason of government restrictions, devaluation or revaluation of currency, war, strikes, embargo, riots, civil commotion, labor disputes or unrest, acts of God, or any other circumstances beyond the direct or indirect control of Axia.
- Limitation of Liability; Mitigation of Damages.
Under no circumstances will Axia be liable to Customer (i) in connection with the performance of the Services by Axia except as specifically set forth herein (ii) for any delay or cancellation of any Purchase Order or (iii) otherwise for any amount in excess of [(4%)] of the purchase price set forth in the Purchase Order. All claims for incidental, special, exemplary, indirect or consequential damages, whether based upon theories of contract, tort, or otherwise, are hereby waived by Customer. Customer shall use best efforts to mitigate any and all damages incurred as a direct or indirect result of the actions or inactions of Axia.
All notices, requests, consents, claims, demands, waivers, summons and other legal process, and other similar types of communications hereunder (each, a “Notice”) must be in writing and addressed to the relevant party at the address set forth on the Purchase Order (or to such other address that may be designated by the receiving party from time to time in accordance with this Section 13). All Notices required or permitted hereunder shall be given in writing and shall either be (i) personally delivered, (ii) transmitted by postage prepaid certified mail, return receipt requested, (iii) transmitted by nationally recognized private express courier or (iv) by electronic mail, and shall be deemed to have been given on the date of receipt if delivered personally, three (3) days after deposit in mail or express courier, or during business hours upon successful transmission of an electronic mail message, and on the next business day if transmitted outside of business hours.
- Governing Law; Venue.
These Terms and Conditions, the Purchase Order, and all matters arising out of or relating thereto shall be governed by, and construed in accordance with, the laws of the State of California, without regard to its conflict of laws provisions. Any legal suit, action or proceeding arising out of or relating to these Terms and Conditions or the Purchase Order must be instituted in the federal courts of the United States for the Central District of California or the courts of the State of California, in each case located in Los Angeles County, and each party hereby irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
If any term or provision of the Purchase Order or these Terms and Conditions is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Purchase Order or these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.
Each party hereto acknowledges that such party and their respective counsel have each had an opportunity to review and revise these Terms and Conditions, and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be applied in the interpretation of these Terms and Conditions.
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