1.  Applicability.

(a) These terms and conditions of sale (these “Terms“) are the only terms that govern the sale of the goods (“Goods“) and services (“Services“) by Pac Team America, Inc. (“Seller“) to the buyer named on the Order Confirmation (as defined below) (“Buyer“). Collectively Buyer and Seller are referred to as the “Parties” and individually as “Party.”

(b) The accompanying order confirmation (the “Order Confirmation“) and these Terms (collectively, this “Agreement“) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement supersedes any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Seller expressly rejects Buyer’s general terms and conditions of purchase, and fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions or serve to modify or amend these Terms. Acceptance of the Order Confirmation by Buyer (which shall be deemed accepted should Buyer not object in writing within 5 business days of receipt of the Order Confirmation) is a prerequisite to the purchase of the Goods and shall operate as an acceptance of these Terms which are expressly incorporated into the Order Confirmation.

2. Delivery.

(a) The goods will be delivered within time frame set forth in Seller’s Order Confirmation or sales quote, subject to availability of the Goods. Delivery dates given by Seller are estimates only and are subject to shipping variations and requirements. Seller shall not be liable for any delays, loss, or damage in transit beyond the applicable shipping term’s delivery point.

(b) Seller shall deliver the Goods to the address set forth in the Sales Confirmation (the “Delivery Point“) using Seller’s standard methods for packaging and shipping such Goods. Buyer is responsible for fees associated with not taking timely delivery of the Goods, such as storage fees.

3. Title and Risk of Loss. Title and risk of loss pass to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the New Jersey Uniform Commercial Code.

4. Amendment and Modification. Except for Section 2(b), these Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each Party.

5. Inspection.

(a) Buyer shall inspect the Goods within 7 days of receipt (“Inspection Period“). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods (as defined below) during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in the Order Confirmation; or (ii) product’s label or packaging incorrectly identifies its contents.

(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) repair or replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable third-party shipping and handling expenses actually incurred and paid by Buyer in connection therewith. Buyer shall ship, at its initial expense and risk of loss, the Nonconforming Goods to Seller’s facility located at 205 Robin Road, Suite 200, Paramus, NJ 07652 or other address specified by Seller.  If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point and shall also refund or credit Buyer for the cost of shipping the Nonconforming Goods to Seller.  

(c) Buyer acknowledges and agrees that the remedies set forth in Section 6(b) are Buyer’s exclusive remedies for Nonconforming Goods. Except as provided under Section 6(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.

6. Price.

(a) Buyer shall purchase the Goods from Seller at the prices (the “Prices“) set forth in Seller’s quotation or estimate as of the date of the Order Confirmation.

(b) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property or other assets. The Prices include standard packaging. The Prices exclude transportation and insurance costs which are the responsibility of the Buyer.

(c) All Delivery Duty Paid (“DDP”) pricing quotations include applicable tariffs and duties at the time the quotation is issued.   Once an Order Confirmation is issued, the price is fixed and subject to adjustment based on upon any changes to applicable tariffs or duties.  In the event of a subsequent reduction, refund or reimbursement of the applicable tariffs or duties the Buyer is not entitled to any refund, credit or offset of the same.

7. Payment Terms.

(a) Buyer shall pay Seller all invoiced amounts due within 30 days after the date of Seller’s invoice. All payments hereunder shall be in US dollars and made by check, electronic transfer, or wire. Seller reserves the right to require pre-payment in its sole discretion.

(b) Buyer shall pay interest on all late payments at the lesser of the rate of 1% per month or the highest rate permissible under applicable law. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for 7 days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.

8. Limited Warranty.  

Seller warrants to Buyer that:

(a) for a period of 1 year(s) from the date of delivery of the Goods (the “Warranty Period“), and subject to the limitations Subsection 8(b), the Goods will materially conform to Seller’s published specifications in effect as of the date of manufacture; and

(b) Goods manufactured by third parties and supplied by Seller without modification or fabrication including, but not limited to, televisions LED lighting, power supplies, writing, printed graphics, drawer slides, hinges and electronic locks, shall be subject to the original manufacturer warranty, which Seller shall transfer to Buyer; and 

(c) Buyer will receive good and valid title to the Goods, free and clear of all encumbrances and liens.

The warranties under this section do not apply where the Goods have been: (i) subjected to abuse, misuse, neglect, negligence, accident, abnormal physical stress or environmental conditions, use contrary to any instructions issued by Seller, or improper testing, installation, storage, handling, repair, or maintenance; (ii) reconstructed, repaired, or altered by anyone other than Seller or its authorized representative; or (iii) used with any third-party product, hardware, or product that has not been previously approved in writing by Seller.

9. Buyer’s Exclusive Remedy for Breach of Warranty. 

During the Warranty Period:

(a) Buyer shall notify Seller, in writing, of any alleged warranty claim within 7 days from the date Buyer discovers, or upon reasonable inspection should have discovered, such alleged claim (but in any event before the expiration of the applicable Warranty Period);

(b) Buyer shall ship the relevant Goods within 30 days of the date of its notice to Seller, at Seller’s expense, to Seller’s facility located at 205 Robin Road, Suite 205, Paramus, NJ 07652 or other address specified by Seller for inspection and testing by Seller;

(c) If Seller’s inspection and testing reveals, to Seller’s reasonable satisfaction, that such Goods do not conform with the limited warranty set forth herein, Seller shall in its sole discretion, and at its expense (subject to Buyer’s compliance with this Section 10), either (i) repair or replace such Goods, or (ii) credit or refund the Price of such Goods less any applicable discounts, rebates, or credits; and

(d) If Seller exercises its option to repair or replace, Seller shall, after receiving Buyer’s shipment of such Goods, ship to Buyer, at Seller’s expense, the repaired or replacement Goods to the original place of delivery.

(e) Buyer has no right to return for repair, replacement, credit, or refund any Goods except as set forth in this Section 10. In no event shall Buyer reconstruct, repair, alter, or replace any Goods, in whole or in part, either itself or by or through any third party.

(f) THIS SECTION 10 SETS FORTH THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 9.