SALES TERMS & CONDITIONS
Buyer’s submission of a purchase order to ANA Corp. (“ANA”) for goods or parts sold by ANA (“Goods”) constitutes Buyer’s acceptance of and agreement to comply with ANA’s terms and conditions (“Terms”) set forth herein. These Terms together with any other ANA terms of sale are incorporated herein and together shall be deemed to constitute one agreement, binding on all parties hereto.
1. Sale of Goods – ANA agrees to supply the Goods and Buyer agrees to purchase the Goods subject to these Terms. All orders are subject to availability of Goods.
2. Quotations; Pricing – All orders shall be in writing and must include the date of the order, scheduled delivery date, address for delivery and an itemization of units and price. Written quotations automatically expire thirty (30) calendar days from the date issued unless sooner terminated by ANA. ANA’s publications are maintained as sources of general information and are not quotations or offers to sell Goods. All prices are subject to change without notice and are subject to change based upon the sales tax rate in effect on the actual date of sale. Quotations for leases and loans offered by a third-party finance company are not part of these Terms. Such quotations are offered only as a service to the Buyer.
3. Payment Terms – Buyer shall pay to ANA all invoiced amounts within thirty (30) days from the date of the invoice. All payments shall be made in US dollars by check, credit card or wire transfer. Buyer shall pay interest on all late payments at the lesser interest rate of 1.5% per month or the highest rate permissible under applicable law. Buyer’s failure to notify ANA of a disputed invoice within thirty (30) days of the date of such invoice waives Buyer’s right to dispute such invoice. Buyer shall reimburse ANA for all reasonable costs and expenses incurred by ANA in the enforcement of these Terms including ANA’s reasonable attorney’s fees. All credit card payment shall include a processing fee of three percent (3%) of the total purchase price. ANA reserves the right to refuse further sales and/or service on any accounts with a balance due that exceeds ninety (90) days.
4. Taxes – Prices stated may not include applicable state, county, city, or local sales taxes. These Terms are accepted with the understanding that such taxes and charges shall be added, as required by law, at the time the Goods are invoiced to Buyer. Where applicable, ANA will charge sales tax at the time of invoice unless the Buyer has a valid sales tax exemption certificate on file.
5. Security Interest – To the extent permitted under applicable law and in order to secure payment and performance of Buyer’s obligations herein, Buyer grants ANA a security interest in and to all right, title, and interest of Buyer to the Goods and any and all additions, replacements, substitutions, and proceeds of the same (“Collateral”) to secure payment to ANA of charges herein together with any and all other obligations or amounts owed or owing by Buyer hereunder whether now existing or hereafter created and all renewals, extensions, and rearrangement of such liabilities. Buyer appoints ANA as Buyer’s irrevocable attorney-in-fact to file, at Buyer’s expense, any financing statement(s) (and any amendments, renewals, and related instruments) to perfect (or release) ANA’s security interest. Buyer shall execute any such statements or other documents necessary to perfect ANA’s security interest. Buyer will reimburse ANA for expenses incurred to perfect and any continuation of the perfection of ANA’s security interest in the Collateral. While such security interest in Goods is in place, Buyer shall not assign, transfer, move, or otherwise sell any of the Collateral without ANA’s express prior written consent.
6. Shipping; Delivery – ANA will use commercially reasonable efforts to deliver the Goods to Buyer on the scheduled delivery date. Shipping and delivery dates are estimates and dependent upon factors outside of ANA’s control including, but not limited to, the manufacturer’s production schedule, material and labor shortages and other factors beyond ANA’s control. If Buyer does not request a shipper for delivery purposes, ANA shall select the carrier and method of shipment for the Goods. ANA reserves the right to reschedule the delivery date. ANA is not liable for any damage(s) caused by delays in the shipment or delivery of the Goods in whole or in part. Buyer is responsible for all freight, shipping, loading, and unloading costs. Upon ANA’s acceptance of a purchase order, all orders are non-cancellable within the scheduled month of shipment or thirty (30) days from ANA’s acceptance, whichever period is longer.
7. Storage Fees – If Buyer designates pickup at ANA’s facility, the purchase order will designate delivery as “will-call” and Buyer will be notified when Goods are ready for pick up. Buyer has 72 hours to retrieve all Goods designated as “will-call”. If Buyer is late or fails to pick up the Goods after the 72-hour will-call notification expires, ANA reserves the right to charge a storage fee in the amount of $100.00/day per unit, excluding Saturday, Sunday or a federal holiday.
8. Title; Risk of Loss – Title to the Goods shall pass to Buyer upon receipt by ANA of payment in full for the Goods. Risk of loss of Goods passes to Buyer as soon as the Goods are loaded on the carrier. ANA’s responsibility for shipment ceases upon delivery of the Goods to the carrier. Under no circumstances shall ANA be liable for any transportation or storage related charges, fees, liabilities or damages of any kind. Any claim by Buyer for shortage or damage in transit shall be made by written notice to ANA within ten (10) days after receipt of the shipment (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies ANA in writing of any nonconforming products during the Inspection Period and furnishes such written evidence or other documentation as required by ANA.
9. Sharing of Information – ANA shall have the right to provide their partnered lender(s) with a comprehensive and up-to-date list of its dealers, distributors and manufacturer representatives, along with ANA’s corresponding monthly/annual sales figures. This information may be shared for purposes of facilitating the partnered lender(s) ability to contact such dealers, distributors and manufacturer representatives with offers to extend credit for purchasing ANA equipment.
10. Warranty –
a. ANA’s current product warranty is located at www.anacorp.com and by this reference incorporated herein. ANA reserves the right to change the product warranty at any time.
b. Limitation of Remedies: During the limited warranty period, if for any reason the Goods do not perform satisfactorily, as determined by ANA in its sole discretion, ANA may repair or replace the Goods or any part thereof. This remedy is not applicable if the Goods have failed, in whole or in part, due to Buyer’s improper use of the Goods, accident (including, damage during shipment), neglect, abuse, misuse, exposure of the Goods to conditions beyond specifications, power, environmental design limits or operational constraints as specified by ANA (or the manufacturer). Buyer is responsible for all expenses related to repair or replacement due to these causes.
c. The remedies set forth in this Section 9 are Buyer’s sole and exclusive remedies for any breach of the limited warranty.
11. Warranty Disclaimer – Except as set forth above or as otherwise provided by the manufacturer, ANA MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY ANA, OR ANY OTHER PERSON ON ANA’S BEHALF
Any warranty by ANA shall be null and void and have no legal effect if Buyer breaches these Terms or fails to timely pay any amounts due and owing for the Goods.
12. Limitation of Liability – IN NO EVENT SHALL ANA, ITS AFFILIATES, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LIQUIDATED, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING IN CONNECTION WITH OR RELATING TO BUYER’S PURCHASE FROM ANA OF ANY GOODS, SERVICES OR OTHER ITEMS FURNISHED HEREUNDER EVEN IF ADVISED OF THE POSSIBLITY OF SUCH CLAIM AND EVEN IF THE REMEDY FAILS OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL ANA’S TOTAL LIABILITY ARISING HEREUNDER EXCEED THE AMOUNTS PAID BY BUYER DURING THE TWELVE-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM.
13. Indemnification – Buyer agrees to indemnify, defend and hold harmless ANA from and against any and all claims, actions, suits, proceedings, costs, expenses, damages, liabilities, deficiencies, fees, interest, awards, penalties, fines, costs (including, but not limited to, attorney fees and court costs), judgements, and settlements, (including those brought or incurred by or in favor of Buyer’s employees, agents and subcontractors), arising out of or related to the: (i) selection, delivery, loading, unloading, towing, possession, use, misuse, failure or maintenance of the Goods, operation, handling, retaking, or transportation of the Goods (inclusive of any of the foregoing by Buyer’s employees or agents); (ii) personal injury, death or property damage or loss of any nature whatsoever arising out of or related to the Goods; (iii) any breach by Buyer, its employees or agents of these Terms or any applicable law; or (iv) any act or omission of Buyer, its employees or agents. Furthermore, Buyer agrees to defend, at its expense, any and all suits brought against ANA (including any third-party suits or actions) and additionally to satisfy, pay and discharge any and all judgments and fines against ANA in any such suits or actions, regardless of the cause of action.
14. Buyer Default –
a. Buyer shall be in default if: (i) Buyer fails to make timely payment of any and all amounts due and owing; (ii) Buyer breaches any provision of these Terms; (iii) Buyer ceases doing business as a going concern, makes an assignment for the benefit of creditors, is unable to pay debts as they become due, files a petition in bankruptcy, or if owners, shareholders, or members of Buyer’s business seek dissolution or liquidation of Buyer; or (iv) Buyer attempts to sell, transfer, or encumber, sublease or convey the Goods in whole or in part.
b. In the event of a default, ANA may, in its sole discretion, exercise the following rights and remedies: (i) declare any amounts due and owing immediately due and payable; (ii) require Buyer to return the Goods to ANA at a place and time designated by ANA; (iii) enter upon Buyer’s property or facility and take possession of and remove the Goods; (iv) sell, lease, transfer or otherwise deal with the Goods or proceeds thereof; (v) in the event of a sale of the Goods, ANA may obtain a judgment against Buyer for any deficiency remaining on the amount owing after application of all amounts received from the exercise of its rights hereunder; and (vi) exercise all other rights and remedies as a secured creditor under the provisions of the Uniform Commercial Code in the state where the Goods are located. All of ANA’s rights and remedies shall be cumulative and may be exercised singularly or concurrently.
15. Force Majeure – If either party is unable by reason of Force Majeure to carry out any of its obligations hereunder, other than obligations to pay money, then on such party giving notice and sufficient detail in writing to the other party within a reasonable time after the occurrence of the cause relied upon, such obligations shall be suspended. Force Majeure shall include, but not be limited to, any event that is beyond the reasonable control of the party so affected, including, without limitation, any delay or non-performance due to governmental acts or regulations, manufacturing delays, inability to obtain labor or materials, labor disputes, hostile action, weather, fire, casualty, epidemics, communication line failures, power failures, earthquakes or acts of God such as floods, storms, landslides, hurricanes and the like. If performance is delayed or prevented for more than thirty (30) consecutive business days, either party can immediately terminate the order by written notice.
16. Compliance with Laws – Buyer shall comply with all local, state and federal laws, rules and regulations. ANA will comply with all United States requirements that may apply to the design, production, sale, or distribution of the Goods.
17. Governing Law – These Terms shall be governed and construed in accordance with the substantive laws of the State of Nevada. Venue for any and all actions shall be in the state or federal courts located in Clark County, Nevada.
18. Dispute Resolution – In the event of disagreement with respect to any provision of these Terms Buyer or any other controversy, claim or breach hereof, the management of each party shall meet in good faith, as quickly as reasonably possible, to reach an amicable resolution.
If such efforts are unsuccessful within thirty (30) days after commencement of management’s efforts, then any controversy, dispute or claim (regardless of legal theory) arising out of or relating to these Terms or the relationship between ANA and Buyer, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with its commercial arbitration rules in Clark County, Nevada. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
19. Waiver – No delay or failure by either party to exercise any right or remedy pursuant to these Terms and no partial or single exercise of that right or remedy shall constitute a waiver of that or any other right or remedy, unless otherwise expressly provided herein.
20. Severability – If any provision of these Terms shall be determined to be invalid, illegal, or unenforceable by any court of competent jurisdiction, then such part shall be reformed, if possible, to conform to the law and the remaining parts of these Terms shall remain in full force and effect.
21. Assignment – Buyer shall not assign or delegate any obligation owed or the performance of any obligation by Buyer without the express prior written consent of ANA. Any attempted assignment or delegation by Buyer shall be void and constitute a breach of these Terms.
22. Entire Agreement – These Terms constitute the entire agreement between the parties regarding its subject matter, and supersede any prior or contemporaneous representations, understandings and agreements, whether oral or written. Any additional, ambiguous or conflicting terms contained in any of Buyer’s documents are expressly rejected from the interpretation and enforcement of these Terms. This Agreement may only be modified or amended if by a writing signed by duly authorized representatives of both parties.