The sale of products and services (“Products”) by Ellipse-Tronic Limited, (“Ellipse-Tronic Limited”) to a customer (“Customer”) are subject to these terms and conditions (“Agreement”) regardless of other terms or conditions in any purchase order, document, or other communication of Customer (“Order”) or Ellipse-Tronic Limited’s failure to object to such other terms. This Agreement may only be modified in writing signed by authorized representatives of both Ellipse-Tronic Limited and Customer.
1. ORDERS. Unless otherwise stated on the quote, Ellipse-Tronic Limited quotes are invitations to tender and are subject to change at any time without notice. All Orders are subject to acceptance by Ellipse-Tronic Limited. Contracts between Customer and Ellipse-Tronic Limited are formed upon Ellipse-Tronic Limited’s written acceptance or execution of Customer’s Order and are subject to this Agreement. All Orders for Products that Ellipse-Tronic Limited realizes are non-standard Products and they are non-cancelable and non-returnable. Ellipse-Tronic Limited delivers Products as non-standard, so Customer may not change, cancel or reschedule Orders for such Products without Ellipse-Tronic Limited’s consent.
2. PRICES. Unless otherwise stated on Ellipse-Tronic Limited’s proposal, quote or invoice, prices are for Products only and do not include taxes, freight, duties or any other charges or fees for additional services (collectively, “Additional Fees”). Unless otherwise stated on Ellipse-Tronic Limited’s proposal, quote or invoice, Customer is responsible for any and all Additional Fees.
3. TERMS OF PAYMENT. Payment is due as stated on Ellipse-Tronic Limited’s invoice without offset or any deduction for withholding taxes or otherwise. On any past due invoice, Ellipse-Tronic Limited may charge interest from the payment due date to the date of payment at 18% per annum or the maximum amount allowed by applicable law, plus reasonable attorneys’ fees and collection costs. At any time, Ellipse-Tronic Limited may change the terms of Customer’s credit. Ellipse-Tronic Limited may apply payments to any of Customer’s accounts. If Customer defaults on any payment, Ellipse-Tronic Limited may reschedule or cancel any outstanding delivery or Order and declare all outstanding invoices due and payable immediately.
4. DELIVERY. Unless otherwise stated by Ellipse-Tronic Limited in writing, all Ellipse-Tronic Limited deliveries are DAP Ellipse-Tronic Limited’s warehouse or, for drop shipments, EXW the factory’s warehouse. Ellipse-Tronic Limited’s delivery dates are estimates only and subject to Ellipse-Tronic Limited’s timely receipt of supplies. Ellipse-Tronic Limited is not liable for delays in delivery, for partial or early deliveries and Customer shall accept delivery. Customer may not cancel any other Orders based on delayed delivery of any part of an Order.
5. TITLE. For sales from Ellipse-Tronic Ltd, as a form of payment security, title shall pass to Customer upon payment in full for the Product by Customer. In case of an onwards sale, Customer assigns all rights in the related receivables to Ellipse-Tronic Limited until Customer has made payment in full. Once the Product is processed or combined with other items (the “Processed Product”), Ellipse-Tronic Limited’s retained title transfers to a share in the title in the Processed Product reflecting the value of the Product relative to the value of the Processed Product.
6. WARRANTY. Customer acknowledges that Ellipse-Tronic Limited is not the manufacturer of the Products. If required by law, Ellipse-Tronic Limited warrants that at the time of delivery, Products will conform to the specifications stated by the manufacturer in its published data sheet and drawings for the Products. All warranty claims shall be time-barred 3 months from the time of delivery of the non-conforming Products. If Ellipse-Tronic Limited performs value-added work such as integration work, tape-and-reel, or programming, Ellipse-Tronic Limited warrants such value-add work will conform to Customer’s written specifications accepted by Ellipse-Tronic Limited for 90 days after Ellipse-Tronic Limited delivery. Customer will be deemed the manufacturer of such value-added Products. ELLIPSE-TRONIC LIMITED MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, SUCH AS WARRANTY OF MERCHANTABILITY, FITNESS FOR PURPOSE OR NON-INFRINGEMENT. Customer’s sole remedies for breach of Ellipse-Tronic Limited’s warranty are, at Ellipse-Tronic Limited’s choice: (i) repair of the Products; (ii) replacement of the Products; or (iii) refund of Customer’s purchase price for the Products.
7. PRODUCT RETURN. Customer may return Products to Ellipse-Tronic Limited only with a return material authorization (“RMA”) number issued by Ellipse-Tronic Limited. (A) Returns for Visual Defect: Customer must notify Ellipse-Tronic Limited in writing of any damage to the outer packaging or the Products, shortage, or other discrepancy (“Visual Defect”) within three business days after receipt of the shipment; otherwise, Customer is deemed to have accepted the Products. (B) Returns for Product Warranty: Customer must notify Ellipse-Tronic Limited in writing stating the specific Product defect within the warranty period. Ellipse-Tronic Limited will only issue an RMA, if the defect (either for Visual Defect or for Product Warranty) is created solely by Ellipse-Tronic Limited or the original manufacturer, and only if Customer meets the notice requirement. Ellipse-Tronic Limited will not grant RMAs for damage, shortage, or other discrepancy created by Customer, the carrier or freight provider, or any other third party. Upon receiving the RMA, Customer must return the Products to Ellipse-Tronic Limited in compliance with Ellipse-Tronic Limited’s instructions in the RMA. Ellipse-Tronic Limited may assess all Products returned by Customer via RMA. If Ellipse-Tronic Limited determines such Products are not eligible for return, Ellipse-Tronic Limited will send such Products back to Customer on freight collect basis, or hold such Products for Customer’s collection and on account at Customer’s expense.
8. LIMITATION OF LIABILITY. Ellipse-Tronic Limited’s liability to Customer is limited to Customer’s direct damages up to an amount not exceeding the price of the Product at issue. Ellipse-Tronic Limited is not liable for and Customer is not entitled to any indirect, special, incidental or consequential damages (for example, loss of profits or revenue, loss of data, loss of use, rework, repair, manufacturing expense, costs of product recall, injury to reputation or loss of customers). To the extent Ellipse-Tronic Limited cannot lawfully disclaim any implied or statutory warranties, Customer’s statutory rights are not affected by this limitation of liability.
9. FORCES BEYOND ELLIPSE-TRONIC HK LIMITED’S CONTROL. Ellipse-Tronic Limited is not liable for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control (for example, acts of nature, acts or omissions of Customer, operational disruptions, man-made or natural disasters, epidemic medical crises, materials or Product shortages, strikes, criminal acts, delays in delivery or transportation, or inability to obtain labor, materials or Products through regular sources).
10. USE OF PRODUCTS. Customer shall comply with the manufacturer’s Product specifications. If Customer uses or sells the Products and fails to comply with the manufacturer’s Product specifications, Customer acknowledges that such use, sale, or non-compliance is at Customer’s sole risk. Customer shall indemnify, defend and hold Ellipse-Tronic Limited harmless from any claims based on: (i) Ellipse-Tronic Limited’s compliance with Customer’s designs, specifications, or instructions, (ii) modification of any Product by anyone other than Ellipse-Tronic Limited, or (iii) use of Products in combination with other products or in violation of this clause.
A. This Agreement shall be governed, construed, and enforced in accordance with the laws of Hong-Kong where the Ellipse-Tronic Limited entity that accepted Customer’s Order (“Governing Country”) is located. The courts of the Governing Country shall have jurisdiction and venue over all controversies arising out of, or relating to, this Agreement.
B. Customer may not assign this Agreement without Ellipse-Tronic Limited’s prior written consent. Ellipse-Tronic Limited’s affiliates may perform Ellipse-Tronic Limited’s obligations under this Agreement. This Agreement is binding on successors and assigns.
C. The unenforceability or invalidity of any of these terms or conditions will not affect the remainder of the terms or conditions.
D. Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and user licenses, and Customer shall comply with such rights.
E. The parties agree that electronic signatures may be used and will be legally valid, effective, and enforceable.