Terms and Conditions of Sale

1. Parties: PUI AUDIO, Inc. a Delaware corporation, referred to as “PUI AUDIO”. Person or company purchasing referred to as “Buyer”. All materials, products, goods, or work described regardless of type, will be collectively referred to as “Products”.
2. Documents Incorporated: These Terms and Conditions of Sale are contained directly and/or by reference in PUI AUDIO’s offer, order acknowledgment, and invoice documents. The first of the following acts constitutes and acceptance of PUI AUDIO’s offer and not a counteroffer and creates a contract of sale (“Contract”) in accordance with these Terms and Conditions: (i) Buyer’s issuance of a purchase order document against PUI AUDIO’s offer; (ii) acknowledgement of Buyer’s order by PUI AUDIO; or (iii) commencement of any performance by PUI AUDIO pursuant to Buyer’s order. Provisions contained in Buyer’s purchase documents (including electronic commerce interfaces) that materially alter, add to or subtract from the provisions of these Terms and Conditions of Sale are not a part of the Contract.
3. Prices and Order Sizes: All prices are in US dollars and unless otherwise specified by PUI AUDIO, all prices are ex-works PUI AUDIO’s factory or warehouse from which shipment is made. The prices listed represent an estimate for the Products based on the current price lists at the time of order. The actual amounts charged are determined on the date of actual delivery along with shipping and transportation charges. Additionally, PUI AUDIO is entitled to impose a temporary surcharge if the supply chain costs (e.g.) material, labor, and freight costs) significantly increased since entering into the Contract. The prices stated herein do not include any charges for services such as insurance; brokerage fees; sales; use; inventory or excise taxes; import or export duties; special financing fees; VAT, income or royalty taxes imposed outside the U.S.; consular fees; special permits or licenses; or other charges imposed upon the production, sale, distribution, or delivery of Products. Buyer will either pay any and all such charges or provide PUI AUDIO with acceptable exemption certificates, which obligation survives performance under the Contract. PUI AUDIO reserves the right to establish minimum order sizes and will advise Buyer accordingly.
4. Payments: All payments must be made in U.S. dollars. Invoices for all orders are due and payable NET 30 DAYS from date of the invoice without regard to delays for inspection or transportation, with payment to be made by check to PUI AUDIO at the above address or by wire transfer to the account stated on the front of PUI AUDIO’s invoice or for customers with no established credit, PUI AUDIO may require cash or credit card payment in advance of delivery. In the event payments are not made or not made in a timely manner, PUI AUDIO may, in addition to all other remedies provided at law, either: (a) declare Buyer’s performance in breach and terminate this Contract for default; (b) withhold future shipments until delinquency is cured: (c) deliver future shipments on a cash-with-order or cash-in-advance basis even after the delinquency is cured; (d) charge interest on the delinquency at a rate of 1-1/2% per month or the maximum rate permitted by law, if lower, for each month or part thereof of delinquency in payment plus applicable storage charges and/or inventory carrying charges; (e) repossess the Products for which payment has not been made: (f) recover all costs of collection including reasonable attorney’s fees; or (g) combine any of the above rights and remedies as is practicable and permitted by law. Buyer is prohibited from setting off any and all monies owed under this from any other sums, whether liquidated or not, that are or may be due Buyer, which arise out of a different transaction with PUI AUDIO. Should Buyer’s financial responsibility become unsatisfactory to PUI AUDIO in its reasonable discretion, PUI AUDIO may require cash payment or other security. If Buyer fails to meet these requirements, PUI AUDIO may treat such failure as reasonable grounds for repudiation of this Contract, in which case reasonable cancellation charges shall be due PUI AUDIO. Buyer grants PUI AUDIO a security interest in the Products to secure payment in full, which payment releases the security interest but only if such payments could not be considered an avoidable transfer under the U.S. Bankruptcy Code or other applicable laws. Buyer’s insolvency, bankruptcy, assignment for the benefit of the creditors, or dissolution or termination of the existence of Buyer, constitutes a default under this Contract and affords PUI AUDIO all the remedies of a secured party under the U.C.C., as well as the remedies stated above for late payment or non-payment.
5. Delivery Dates, Title/ Risk and Shipment: Delivery dates and lead times indicated in the proposal are best estimates. Actual material availability, and/or delay of Buyer’s furnished materials may impact original estimated delivery dates. PUI AUDIO shall not be responsible for any damages of any kind resulting from any delay. Regardless of the manner of shipment, legal title to any Products and risk of loss or damage thereto shall pass to Buyer upon tender to the first carrier at the factory or warehouse of PUI AUDIO. Unless otherwise stated herein, Buyer may exercise its judgment in choosing the carrier and means of delivery. No deferment of shipment at Buyer’s request beyond the respective dates indicated will be made except on prior written acceptance by PUI AUDIO and on terms that will indemnify PUI AUDIO against any and all additional charges expenses, including, but not limited to demurrage, handling, storage and insurance charges.
6. Limited Warranty: PUI AUDIO warrants that Products sold hereunder will be free from defects in material and workmanship and will, when used in accordance with the manufacturer’s operating and maintenance instructions, conform to any written warranty pertaining to the specific goods purchased, which for most PUI AUDIO goods is for a period of twelve (12) months from delivery. No warranties are extended to consumable items such as, without limitation, batteries. PUI AUDIO’s sole liability under such warranty or in connection with any other claim relating to the Products shall be limited, or at PUI AUDIO’s option, the repair, the replacement or refund of the purchase price, of any Products or parts or components thereof which are returned to PUI AUDIO freight prepaid and which are confirmed defective in material or workmanship by PUI AUDIO. Products or parts or components thereof which are repaired or replaced by PUI AUDIO will be returned to Buyer freight collect. Buyer’s account must be in current status as to all requirements, including but not limited to all amounts owed PUI AUDIO, for this warranty to be applicable.
   PUI Audio does not warrant any “consumer product” within the meaning of the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C. §§ 2301-12. PUI AUDIO disclaims all warranties, express or implied, to the extent that a Product qualifies as a consumer product.

   EXCEPT AS EXPRESSLY STATED ABOVE, PUI AUDIO MAKES NO WARRANTY, EXPRESS OR IMPLIED, WHETHER OF MERCHANTABILITY OR FITNESS FOR ANY
   PARTICULAR PURPOSE OR USE OR OTHERWISE, ON THE PRODUCTS, OR ON ANY PARTS OR LABOR FURNISHED DURING THE SALE, DELIVERY OR SERVICING
   OF THE PRODUCTS.PUI AUDIO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED FOR PRODUCTS USED IN NON-AUDIO APPLICATIONS.

   This remedy will not be deemed to have failed of its essential purpose so long as PUI AUDIO is willing to provide such replacement, credit or refund.

7. Cancellations or Delays: Buyer MAY NOT cancel or delay an order or any part of an order once PUI AUDIO has accepted such order, unless BUYER provides written request of such cancellation/delay and PUI AUDIO approves such request in writing (“Approved Cancellation or Approved Delay”). PUI AUDIO’s approval and consent to a Buyer’s cancellation/delay of an accepted order, shall be at PUI AUDIO’s sole discretion. In the event of an Approved Cancellation, cancellation charges may apply. All cancellation charges shall be the responsibility of the Buyer. Cancellation charges will be calculated based on the status of product in process such charges may include but not limited to: raw materials in stock or on order; Non-Cancellable Non Refundable products; or products with engineering changes. Cancellation charges may exceed the value of the order in the event excess materials apply. In the event of an Approved Delay, regardless of the shipment date, any and all materials purchased for an Approved Delayed will be paid by Buyer within six (6) months of the order date. PUI AUDIO may cancel all or part of any order prior to delivery without liability if the order includes any Products that PUI AUDIO determines may not comply with export, safety, local certification or other applicable compliance requirements.
8. Indemnification: Indemnification applies to a party and to such party’s successors-in-interest, assignees, affiliates, directors, officers, and employees (“Indemnified Parties”). PUI AUDIO is responsible for and will defend, indemnify and hold harmless the Buyer Indemnified Parties against all losses, claims, expenses or damages which may result from accident, injury, damage, or death due to PUI AUDIO’s breach of the Limited Warranty. Buyer is responsible for and will defend , indemnify and hold harmless the PUI AUDIO Indemnified Parties against all losses, claims expense or damages which may result from accident, injury, damage or death due to negligence, misuse or misapplication of any goods or services, violations of law, or the breach of any provision of this Contract by the Buyer, its affiliates, or those employed by, controlled by or in privity with them. Buyer’s workers’ compensation immunity, if any, does not preclude or limits its indemnification obligations.
9. Claims; Commencement of Actions: Buyer shall promptly inspect all Products upon delivery. No claims for shortages will be allowed unless such shortages are reported in writing to PUI AUDIO within 10 calendar days after delivery. No other claims against PUI AUDIO will be allowed unless asserted in writing within 30 calendar days after delivery or, in the case of an alleged breach of warranty, be given by written notice within the warranty period and within 30 calendar days after which the defect is or should have been discovered by Buyer. Any action based upon breach of this contract or upon any other claim arising out of this sale (other than an action by PUI AUDIO for any amount due to PUI AUDIO by Buyer) must be commenced within one year from the date of the tender of delivery by PUI AUDIO. Notwithstanding any other provision of these Terms and Conditions, PUI AUDIO may bring a court action for collection of amounts due and owing by a customer, in the Montgomery County Court of Common Pleas, Dayton, Ohio. Buyer shall reimburse PUI AUDIO all of its costs and expenses in collection of amounts due herein, including but not limited to attorney fees and related costs and expenses. Ohio law shall govern any court action filed by PUI AUDIO for collection of amounts due and owing by Buyer.
10. Limitations of Liability: NONE OF THE PUI AUDIO INDEMNIFIED PARTIES WILL BE LIABLE TO ANY BUYER INDEMNIFIED PARTIES UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR AS THE RESULT OF, THE SALE, DELIVERY, NON-DELIVERY, SERVICING, USE OR LOSS OF USE OF THE PRODUCTS OR ANY PART THEREOF OTHER THAN FOR THE PRODUCTS PURCHASED HEREUNDER; DAMAGES INCURRED IN INSTALLATION, REPAIR OR REPLACEMENT; LOST PROFITS, REVENUE OR OPPORTUNITY; LOSS OF USE; LOSSES RESULTING FROM OR REALTED TO DOWNTIME OF THE PRODUCTS; THE COST OF SUBSTITUTE
    PRODUCTS; OR CLAIMS OF ANY BUYER INDEMNIFIED PARTIES’ CUSTOMERS FOR SUCH DAMAGES, HOWSOEVER CAUSED, AND WHETHER BASED ON WARRANTY, CONTRACT, AND/OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE). , IN NO EVENT SHALL PUI AUDIO’S LIABILITY UNDER ANY CLAIM MADE BY BUYER EXCEED IN THE AGGREGATE A SUM EQUAL TO TWICE THE AMOUNT ACTUALLY PAID TO PUI AUDIO FOR THE PRODUCTS IN RESPECT OF WHICH DAMAGES ARE CLAIMED.
11. Force Majeure: Except for Buyer’s payment obligations, neither party shall be liable for any default or delay in performance, in whole or in part, or any loss, damage, cost or expense, resulting from causes beyond its reasonable controls such as acts of God; war; force of arms; fire; the elements; riot; labor disputes; picketing or other labor controversies; sabotage; civil commotion; accidents; any governmental action, prohibition or regulation; delay in transportation facilities; shortage or breakdown of or inability to obtain or non-arrival of any labor, material or equipment used in the manufacture of the Products; failure of any party to perform any contract with PUI AUDIO relative to the production of the Products; (“Force Majeure Event”). In such event, the party delayed shall promptly give notice to the other party. The party delayed shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.

    The party affected by the delay may:(a) extend the time for performance for the duration of the Force Majeure Event, or (b) cancel all or any part of the unperformed part of this Contract without penalty and without being deemed in default or in breach the reof, if such Force Majeure Event lasts longer than ninety (90) days. If a Force Majeure Event, affects PUI AUDIO’s ability to meet its obligations at the agreed upon pricing, or PUI AUDIO’s costs are otherwise increased as a result of such Force Majeure Event, PUI AUDIO may increase pricing accordingly upon written notice to Buyer.

12. Loss to Buyer’s Property; Patent, Trademark, or Copyright Infringement, Etc.: PUI AUDIO shall not be liable for, and shall have no duty to provide insurance against, any damage or loss to any goods or materials of Buyer which are used by PUI AUDIO in connection with this order. Subject to all limitation of liability provided herein, PUI AUDIO will, with respect to any Products of PUI AUDIO’s design or manufacture indemnify Buyer from any and all damages and costs as finally determined by a court of competent jurisdiction in any suit for infringement of any U.S. patent (or European patent for Products that PUI Audio sells to Buyer for end use in a member state of the E.U.) that has issued as of the delivery date, solely by reason of the sale or normal use of any Products sold to Buyer hereunder and TERMS AND CONDITIONS OF SALE v.2.2023 from reasonable expenses incurred by Buyer in defense of such suit if PUI AUDIO does not undertake the defense thereof, provided that Buyer promptly notifies PUI AUDIO of such suit and offers PUI AUDIO either (i) full and exclusive control of the defense of such suit when Products of PUI AUDIO only are involved, or (ii) the right to participate in the defense of such suit when products other than those of PUI AUDIO are also involved. PUI AUDIO’s warranty as to use patents only applies to infringement arising solely out of the inherent operation of the Products according to their applications as envisioned by PUI AUDIO’s specifications. In case the Products are in such suit held to constitute infringement and the use of the Products is enjoined, PUI AUDIO will, at its own expense and at its option, either procure for Buyer the right to continue using such Products or replace them with non-infringing products, or modify them so they become non-infringing, or remove the Products and refund the purchase price (prorated for depreciation) and the transportation costs thereof. The foregoing states the entire liability of PUI AUDIO for patent infringement by the Products. Further, to the same extent as set forth in PUI AUDIO’s above obligation to Buyer, Buyer agrees to defend, indemnify and hold harmless PUI AUDIO for patent infringement related to (x) any goods manufactured to the Buyer’s design, (y) services provided in accordance with the Buyer’s instructions, or (z) PUI AUDIO’s Products when used in combination with any other devices, parts or software not provided by PUI AUDIO hereunder.
13. PUI AUDIO’s Specifications, Technical Data, Etc: “Proprietary Information” means any specifications, drawings, plans, notes, instructions, engineering notices, technical data or know-how in whatever form, whether documented, contained in machine readable or physical components, mask works or artwork or otherwise, which PUI AUDIO considers proprietary. PUI AUDIO shall at all times retain title to all such Proprietary Information, and Buyer and its customers, employees and agents will keep confidential all such Proprietary Information obtained directly or indirectly from PUI AUDIO and will not transfer or disclose it without PUI AUDIO’S prior written consent, or use it for the manufacture, procurement, of Products or any similar products, or cause such products to be manufactured, serviced or calibrated by or procured from any other source or reproduce or otherwise appropriate it. No right or license is granted to Buyer or its customers, employees or agents, expressly or by implication, with respect to the Proprietary Information or any patent right or other proprietary right of PUI AUDIO, except for the limited use licenses implied by law. Upon PUI AUDIO’s request, Buyer shall promptly return to PUI AUDIO all Proprietary Information and all copies thereof.
14. Limitation on Assignment: Neither party may assign any of its rights or obligations hereunder without the prior written consent of the other except that PUI AUDIO shall have the right to assign to any company with which it is affiliated or to any corporation into which it shall be merged, with which it shall be consolidated, or by which it, or all or substantially all of its assets, shall be acquired.
15. Export: Unless otherwise specified in this Contract, Buyer is responsible for obtaining any required export or import licenses. Buyer will comply with all laws and regulations applicable to the use of all Products, including applicable import and export control laws and regulations of the U.S., E.U. and any other country having proper jurisdiction, and will obtain all necessary export licenses in connection with all local, national, and other laws of all jurisdictions globally relating to anti-corruption, bribery, extortion, kickbacks, or similar matters which are applicable to Buyer’s business activities in connection with this Contract, including but not limited to the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”). Buyer agrees that no payment of money or provision of anything of value will be offered, promised, paid or transferred, directly or indirectly by any person or entity, to any government official, government employee, or employee of any company owned in party by a government, political party, political party official, or candidate for any government office or political party office to induce such organizations or persons to use their authority or influence to obtain or retain an improper business advantage for Buyer or for PUI AUDIO, or otherwise constitute or have the purpose or effect of public or commercial bribery, advantage, with respect to any of Buyer’s activities related to this Contract.
16. Funds Transfers (Payments): Buyer and PUI AUDIO both recognize that there is a risk of bank fraud when individuals impersonating a business demand payment under new banking or mailing instructions. To avoid this risk, Buyer must verbally confirm any new or changed bank transfer or mailing instructions by calling PUI AUDIO at +1-937-415 5901 and speaking with PUI AUDIO’s CFO before mailing or transferring any monies using the new instructions. Both parties agree that they will not institute mailing or bank transfer instruction changes and require immediate payment under the new instructions but will instead provide a ten (10) day grace period to verify any payment instruction changes before any new or outstanding payments are due using the new instructions.
17. Relationship of Parties: Buyer is not an agent or representative of PUI AUDIO and will not present itself as such under any circumstances.
18. Other Rights or Remedies: Failure of either party to insist upon strict performance of an provision of this Contract, or to exercise any right or privilege contained herein, or the waiver of any breach of the terms or conditions of this Contract will not be construed as thereafter waiving any such terms, conditions, rights, or privileges, and the same will continue and remain in force and effect as if no waiver had occurred. Except as otherwise provided herein, any rights or remedies granted hereunder to either party shall be in addition to, and not in lieu of, any other rights or remedies of such party at law or in equity.
19. Entire Agreement: These Terms and Conditions of Sale constitute the final, complete and exclusive expression of the terms of the agreement, and supersede all prior or contemporaneous written or oral agreements or negotiations with respect to the subject matter. No change to or modification of these Terms and Conditions shall be binding upon PUI AUDIO unless in a written instrument specifically referencing that it s amending these Terms and Conditions of Sale and signed by an authorized representative of PUI AUDIO. PUI AUDIO rejects any additional or inconsistent Terms and Conditions of Sale offered by Buyer at any time, whether or not such terms or conditions materially alter the Terms and Conditions herein and irrespective of PUI AUDIO’s acceptance of Buyer’s order for the described goods.
20. Severability: In the event that any provision hereof shall violate any applicable statute, ordinance, or rule of law, such provision shall be ineffective to the extent of such violation without invalidating any other provision hereof.
21. Governing Law: This document and the sale of all Products shall be governed by and construed in accordance with the laws of the State of Ohio, as applicable to contracts executed and wholly performed therein. Unless otherwise specifically agreed upon in writing between PUI AUDIO and Buyer, any dispute relating to this Contract which is not resolved by the parties shall be adjudicated in order of preference by a court of competent jurisdiction (i) in the State of Ohio, U.S.A. if Buyer has a minimum contacts with Ohio and the U.S., (ii) elsewhere in the U.S. if Buyer has minimum contacts with the U.S. but not Colorado, or (iii) in a neutral location if Buyer does not have minimum contacts with the United States.