Terms and Policies

 

ENCORE SALES AND CREDIT TERMS

 

1. GOVERNING TERMS

All sales by Encore Electronics, Inc. ("ENCORE") shall be governed by the terms and conditions stated in this ENCORE Sales & Credit Terms ("Agreement") which supersedes any representation or prior communications. Any terms stated in Customer's purchase order, if any, are hereby rejected entirely except for the terms that are identical with those stated in ENCORE's invoice or written acknowledgement and this Agreement. The terms stated herein may only be modified in a written amendment signed by an authorized officer of ENCORE.

 

2. PRICE, PAYMENT, DELIVERY

2.1 Any order accepted on credit shall be subject to a late payment handling charge of 1.5% per month of the delinquent invoice amount from the date of invoice until the date of actual payment (as well after as before judgment) or the maximum allowable by law, whichever is lower, without prejudice to ENCORE's rights and remedies in respect of Customer's failure to pay invoices when due. All payments to be made by Customer represent net amounts ENCORE is entitled to receive and shall not be subject to any deductions or offset or delay for any reason whatsoever. Pro-rata payment is due upon partial shipment.

2.2 ENCORE has the right, at any time, to cancel, suspend or modify any credit term that has been granted to Customer, whether partial shipment has been made or not.

2.3 ENCORE retains a purchase money security interest and right of possession in all Products and proceeds, including insurance proceeds, for all Customer's obligations under this Agreement and appoints ENCORE and its treasurer, severally, the attorney-in-fact to sign any financial statement to perfect the purchase money security interest.

2.4 Delivery term shall be F.O.B. ENCORE warehouse. Customer shall pay or reimburse ENCORE for any handling, taxes, duties or other governmental charges imposed by any government authorities arising out of or related to this Agreement which ENCORE is obligated to pay or collect, except for any income tax.

2.5 In order to induce ENCORE to grant credit to Customer, Customer hereby represents and warrants that (a) the financial information Customer provides to ENCORE is true and accurate and can be relied upon, (b) Customer is solvent, (c) Customer pays its obligations as they come due, and (d) Customer's liabilities do not exceed Customer's assets. This representation and warin by reference, until Cusranty shall be deemed to be repeated in each purchase order issued by Customer (whether written or oral) and incorporated theretomer notifies ENCORE otherwise in writing. All financial information provided to ENCORE must be certified by Customer's chief financial officer in writing to be true and accurate, prepared under generally accepted accounting principles, and can be relied upon.

 

3. PRODUCTS ACCEPTANCE

All Products delivered to the address specified in the purchase order shall be deemed accepted unless Customer makes an oral claim within three (3) days of receipt and confirms such claim in writing within five (5) days of receipt with evidence satisfactory to ENCORE of any alleged shortage, damage or discrepancy.

 

4. WARRANTY

4.1 Limited Warranty for Encore’s Customers (U.S.A. & Canada Only)

ENCORE warrants that the Products will substantially conforms to Encore’s specifications for a period of two (2) years from the date of shipment to its direct customers and this limited warranty is Not Transferable ("Limited Warranty Period"). ALL WARRANTY TERMS AND CONDITIONS ARE A WRITTEN AGREEMENT BETWEEN: ENCORE ELECTRONICS, INC., AND ITS DIRECT CUSTOMERS (DISTRIBUTORS). Encore’s sole obligation under this warranty is to repair or replace the products free of charge pursuant to the RETURN section below. Customer’s sole obligation under this warranty is responsible for all in-bound shipping charges to return the defective product to Encore Electronics, Inc.

 

WARRANTY EXCLUSIONS

ENCORE shall have no obligation to repair or replace PASSIVE PRODUCTS, (ACCESSORIES PRODUCTS), to INDIRECT CUSTOMERS (End Users / Consumers). Consult your retail store for warranty terms and conditions, and also be aware that, depending on geographical regions, warranty’s terms may vary.

 

PASSIVE PRODUCTS

ENCORE describes its passive products as:  Products or Accessories that have no power requirements or active electronics parts.

Examples of Passive Products:

  • Super Speed USB 3.0 cable

  • HDMI (High Definition Multimedia Interface) cable

  • Portable laptop cooling stand

  • Wireless antennas

 

There is NO OTHER WARRANTY, REPRESENTATION, OR CONDITION REGARDING ENCORE'S PRODUCTS, SERVICES, OR PERFORMANCE UNDER THIS AGREEMENT, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

4.2 Limited Warranty for International Customers

Encore and Licensee of trademark Encore® warrants that the products will substantially conform to Licensee’s specifications, from the date of shipment to its direct customers and this limited warranty is Not Transferable (“Limited Warranty Period”). ALL WARRANTY TERMS AND CONDITIONS ARE A MUTUAL AGREEMENT BETWEEN Licensee of trademark Encore® AND ITS DIRECT CUSTOMERS.  There is NO OTHER WARRANTY, REPRESENTATION, OR CONDITION REGARDING ENCORE’S PRODUCTS, SERVICES OR PERFORMANCE UNDER THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO: THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

4.3 Limited Warranty and optional extended warranty for End Users (U.S.A. & Canada Only)

Encore warrants the Product (s) will substantially conform to ENCORE’S specifications for a period of one (1) year from the date of purchase and this limited warranty is nontransferable (“Limited Warranty Period”). ENCORE’S sole obligation under this limited warranty period and extended warranty period is to repair or replace the product (s) free of charge pursuant to the RETURN section below. End Users’ sole obligation under this warranty is to be responsible for all in-bound shipping charges to return the defective product to Encore Electronics, Inc. There is NO OTHER WARRANTY, REPRESENTATION, OR CONDITION, WRITTEN OR ORAL, REGARDING ENCORE'S PRODUCTS, SERVICES, OR PERFORMANCE, UNDER THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

To acquire Optional Extended Warranty click here.

 

4.4 Limited Warranty for International End Users

The foregoing is the complete statement for international warranty exclusions and supersedes all other warranties and representation, whether written or oral except as expressly set forth in this statement.

There is not MANUFACTURER WARRANTY TO INTERNATIONAL End Users. Licensee of trademark Encore® ENCOURAGES ALL INTERNATIONAL End Users TO SEEK WARRANTY OPTIONS AT YOUR LOCAL DISTRIBUTORS OR RETAIL STORES, AND BE AWARE THAT WARRANTY TERMS AND CONDITIONS VARY DEPENDING ON GEOGRAPHICAL REGIONS AND STORES.

 

***All products, terms and conditions are subject to change without prior notice***

 

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5. RETURN

Prior to returning any Products to, including refusing receipt of Products from, ENCORE for any reason, Customer shall first obtain a Return Products Authorization ("RMA"). No returns can be made without an RMA. Any authorized returns must be shipped within ten (10) of receiving the RMA and shipped in their original box and packing material, with a copy of ENCORE's invoice, stock number, RMA, and written statement specifying reasons for the return and any defects in the Products in sufficient details satisfactory to ENCORE. If ENCORE authorizes a refund or credit, ENCORE has the right to deduct a restocking charge deemed appropriate by ENCORE. All Products Customer returned to ENCORE shall be shipped CIF ENCORE warehouse. Any replaced Products shall be shipped to Customer FOB ENCORE warehouse.

 

6. TERMINATION

The performance of ENCORE under this Agreement may be terminated, in whole or in part, by ENCORE at its convenience. Further, in the event: (a) of an assignment by Customer for the benefit of creditors; (b) of Customer's insolvency; (c) of Customer's dissolution; (d) a trustee or receiver is appointed for Customer or any substantial part of its assets, (e) any of Customer's property is attached by any creditor, or (f) any breach of this Agreement by Customer, ENCORE has the right, without any liability, (i) to immediately terminate any performance of ENCORE by written notice to Customer; (ii) to stop any shipment in transit, (iii) to immediate payment by Customer of any accrued charges, and (iv) to enter Customer's premises forthwith to reclaim any unpaid Products. The exercise of any ENCORE's rights under this section shall not be deemed a waiver of any rights of ENCORE to recover any damages.

 

7. LIMITATION OF LIABILITY

Except for bodily injury, ENCORE IS NOT LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY DIRECT OR INDIRECT, LOST REVENUE, LOST PROFITS, OR OTHER CONSEQUENTIAL, RELIANCE, INCIDENTAL, OR PUNITIVE DAMAGES, even if ENCORE has been advised of the possibility of such damages. ENCORE'S ENTIRE LIABILITY FOR ALL CLAIMS IN ANY WAY RELATED TO THIS AGREEMENT (INCLUDING TORTS) WHATSOEVER SHALL BE LIMITED TO THE AMOUNT PAID ENCORE FOR THE PRODUCTS WHICH CAUSED THE DAMAGE OR $1,000, whichever is lower, and the sum of cumulative claims may not exceed this limit. Customer hereby agrees to release ENCORE from all obligations, liabilities, claims, or demands in excess of the limitation.

 

8. DISPUTE RESOLUTION

8.1 Limitation

No claim or action arising out of or related to any sales may be brought by either party more than twelve (12) months after the cause of action has arisen, except in the case of nonpayment.


8.2 Governing Law & Venue

The Agreement is entered into in the State of California, and its validity, construction, interpretation, and legal effect shall be governed by laws applicable to contracts entered into and performed entirely within the State of California. Any action arising under or related to this Agreement shall only be initiated and maintained in state or federal courts located in Los Angeles County, California. The parties hereby consent and submit to the personal jurisdiction of such courts for the purpose of litigating any such action.

 

9. GENERAL

9.1 Assignment

This Agreement may not be assigned by Customer without the prior written consent of ENCORE. ENCORE may assign this Agreement upon giving written notice to Customer. Any assignment contrary to this section shall be void and unenforceable.

9.2 Force Majeure

Except with regard to Customer's performance under Section 2 of this Agreement, neither party shall be deemed in default due to causes beyond its reasonable control.

9.3 Relationship

Nothing in this Agreement is intended to create, or shall be construed as creating, a joint venture, partnership, agency, or employment relationship, it being understood that ENCORE and Customer are independent contractors vis-a-vis one another.

9.4 Heading

The headings of this Agreement are provided for convenience and will not control the interpretation of the Agreement.


Last Updated: August 17th, 2010

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ENCORE ELECTRONICS, INC. STANDARD PO TERMS

Encore Electronics, Inc. (EEI) and the seller named in EEI's purchase order (SELLER) agree that the following terms and conditions (Terms) apply to and are incorporated by reference in all Purchase Orders (POs) issued by EEI to SELLER:

 

1. GOVERNING TERMS

1.1 All POs are subject only to the Terms stated herein and any reference to any SELLER's proposal or sales order is only for the purpose of specifying price, identifying the general description of the goods or services stated on the face of the PO (Products) and the terms of payment and only as such terms are consistent with the Terms.

1.2 Any acknowledgment, sales order, or invoice issued by SELLER which contains terms and conditions which are in addition to or different from the PO will be considered a counter offer and will not be binding unless specifically agreed to in writing by EEI. Performance by SELLER in the absence of EEI's acceptance of the counter offer will constitute SELLER's acceptance of the Terms.

 

2. EEI'S PROPERTY

All property, including packaging, molds, tools, designs furnished or paid for by EEI, in whole or in part, will be the property of EEI and bailed to SELLER which shall use, maintain, and insure the property for the sole benefit of EEI without charge, at SELLER's risk and expenses. EEI may remove the property at any time without notice or liability. SELLER shall segregate EEI's property and properly mark the property to show EEI ownership. Any information and intellectual property contained in any materials provided to SELLER, including without limitation drawings, schematics, flow charts, tools, film work, designs, layouts, constructions, arrangements, structures, methods, processes, ideas, concepts, devices, specifications, manuals (Confidential Property) are provided to SELLER in trust and confidence. SELLER shall not disclose Confidential Property to any third party or use them for the benefit of SELLER or any third party. Upon termination or completion of a PO, SELLER shall immediately return the Confidential Property to EEI, EEI's warehouse.

 

3. PAYMENT TERM

Payment term will begin from date of scheduled delivery, the receipt of Products or the date of invoice, whichever is latest

 

4. INSPECTION AND REJECTION

All Products will be subject to final inspection and approval by EEI notwithstanding acceptance and prior payment. At its discretion, EEI may employ either 100% inspection or its sampling plan. Lots which fail to pass the sampling plan may be 100% inspected by EEI which may charge SELLER for inspection time and return the Products to SELLER for sorting, correction, replacement, or full refund or credit, as EEI elects. Rejected Products are returned CIF EEI's warehouse. Seller hereby authorizes EEI to destroy any rejected products not picked up by Seller within 30 days of rejection and waives California Commercial Code §2605(1).

 

5. CHANGES

EEI may at any time, by written change order, make changes in drawings, designs, specifications, quantity ordered, and delivery dates without additional charges. However, SELLER may cancel the order, provided SELLER gives written notice to EEI within five (5) days of EEI's issuance of the change order if the change will result in increased cost to EEI. If market price for the Products decreases 90 days after delivery, EEI has the right to return, CIF EEI warehouse, any Products in inventory for a full refund and refuse further delivery without any liability, unless SELLER agrees to reduce the price for the Products to the then mutually agreed upon prevailing market price. If SELLER provides more favorable price and/or terms to any other customers, SELLER must offer the same price and/or terms to EEI in writing immediately for all Products in EEI's inventory and Products which have not been delivered.

 

6. DELIVERY

Delivery and acceptance shall not be deemed to have occurred until certified in writing by EEI's representative signing the PO. Time is of the essence in delivering Products. If SELLER fails to strictly adhere to EEI's delivery schedule, EEI has the right to reject shipment or require SELLER to make expedited shipments at SELLER's expense, in addition to any other remedy which EEI may have under law. Products produced beyond EEI's releases are at SELLER's risk.

 

7. EXCUSABLE DELAYS

Neither party is liable for delays or defaults due to riots, acts of war, governmental regulations imposed after the fact, earthquakes, fire, and flood, unless such delay exceeds one month.

 

8. MERCHANTABILITY & FITNESS

In addition to any implied warranties, SELLER expressly warrants that all Products will be free from defects in design, material and workmanship, will conform to specifications, drawing, samples or other descriptions provided to SELLER and will be fit for the purposes intended. Unless otherwise stated in the PO, the warranties shall remain in effect for 36 months or Seller's standard warranty period, whichever is longer. The warranty will commence upon acceptance of Products. This warranty shall run to EEI, its successor, assigns, customers and users of the Product. If 5% or more of the Products are found by EEI's customers to be defective, EEI shall have the right to recall all Products at SELLER's expense and have the defects repaired or replaced at SELLER's expense, in addition to other remedies. If more than 10% of the Products contain any defect not discovered during the warranty period ("Latent Defect") within three years from the date of first shipment, the Warranties as stated above will be deemed extended to cover the Latent Defect.

 

9. INFRINGEMENT

SELLER warrants that all work performed and Products supplied shall not violate any third parties' rights, including without limitation patent, trademark, copyright, mask work, or trade secret.

 

10. INTELLECTUAL PROPERTY RIGHTS

Any unpatented knowledge or information concerning SELLER's Product, methods or manufacturing processes and any works of authorship or mask work not registered with the United States Copyright Office which SELLER may develop, discover or disclose to EEI incident to the performance of this PO, are deemed to have been disclosed as a part of the consideration for the PO and EEI shall have full rights to its use. Where services are ordered under a PO or performed incident to the Products ordered, EEI shall own all rights and title to the work of authorship and any invention, semiconductor chip mask work, know how, design, blue print, negative, formulae, diagram, schematic, code, methods, structures, processes prepared or invented by SELLER. SELLER agrees to disclose and assign and hereby does assign to EEI all such title and rights.

 

11. COMPLIANCE WITH LAWS

SELLER warrants that all Products shall comply with all applicable federal, state and local laws and no ozone depleting chemicals were used in the manufacturing process or contained in any Product. SELLER shall provide EEI with full documentation and certification required of all relevant governmental, enviromental and safety agencies prior to or after delivery of any Product.

 

12. INDEMNITY

SELLER shall indemnify and hold harmless EEI, its shareholders, directors, officers, employees, agents, representatives, and customers from any claim, liabilities, fines, penalties, excise tax, costs and expenses, including reasonable attorneys' fees, arising out of or related to the subject matter of this Agreement, including without limitation any breach of any representation or warranty.

 

13. DISPUTE RESOLUTION

This PO and Terms were accepted and entered into in the State of California, and its validity, construction, interpretation, and legal effect shall be governed by U.S. laws and the laws applicable to contracts entered into and performed entirely within the State of California, excluding the UN Convention on Sales of Goods. SELLER and EEI agree any action arising out of or related to this Agreement may be filed only in a court located in Los Angeles County, California, and having jurisdiction. The parties hereby consent and submit to the personal jurisdiction of such court for the purpose of litigating any such action and agrees to accept service by certified mail addressed to the president of the defendant.

Any dispute, controversy, or claim arising out of or related to this Agreement, or the breach, termination, or invalidity thereof, shall be settled by arbitration under the Commercial Arbitration Rules of the American Arbitration Association in effect on the date of sale. The arbitrator shall have ten years experience in the area of international trade, will follow substantive rules of law, require the testimony to be transcribed, and not engage in ex parte communications with any party. The arbitral award shall be (1) made within one year of the initiation of the arbitration, (2) accompanied by findings of facts and a statement of reasons for the decision not exceeding 20 pages, and (3) made tentative for thirty (30) days for the parties to submit written comments. The arbitrator does not have the power to award punitive damages. The entire proceeding shall be kept confidential, including any documents filed or orders issued and any information provided. The arbitration shall be held in Los Angeles, CA, USA. The award shall be final and binding upon the parties. The judgment upon the award may be entered in any court having jurisdiction. The parties reserve their rights to obtain interim relief from any court located in Los Angeles, CA, USA.

 

14. TERMINATION

EEI may terminate performance under this Agreement, in whole or in part, at EEI's convenience. Further, in the event of: (a) an assignment by SELLER for the benefit of creditors; (b) SELLER's insolvency; (c) SELLER's dissolution; (d) a trustee or receiver is appointed for SELLER or any substantial part of its assets, (e) any of SELLER's property is attached by any creditor, (e) any sale in bulk of SELLER's assets, or (f) any breach of this Agreement by SELLER, EEI has the right to immediately terminate or suspend any or all performance of EEI without any liability upon notice to SELLER.

 

15. GENERAL

15.1 This Agreement represents both parties' entire understanding and agreement regarding the matters stated herein and supersedes any prior agreements, communications, advertising, or representations. This Agreement may only be modified in a written amendment signed by an authorized officer of EEI.

15.2 This Agreement may not be assigned by SELLER without the prior written consent of EEI. EEI may assign this Agreement upon giving written notice to SELLER. Any assignment contrary to this section shall be void and unenforceable.

15.3 No party shall be deemed the drafter of this Agreement which shall be deemed to have been jointly prepared by the parties. If this Agreement is ever construed, whether by a court or by an arbitrator, such court or arbitrator shall not construe this Agreement or any provision hereof against any party as drafter.

15.4 The headings of this Agreement are provided for convenience and will not control the interpretation of the Agreement.

15.5
If any provision of this Agreement is found unenforceable, it shall be deemed severed from, and shall not affect the validity of, the balance of this Agreement.

 

Last Updated: August 17th, 2010

 

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