TERMS AND CONDITIONS OF SALE
1. CONTROLLING PROVISIONS: Your order is accepted but Seller’s acceptance is expressly conditioned upon acceptance by you of these terms and conditions. The agreement between Seller and Buyer (the “contract”) with respect to the products (the “products”) and/or services (the “services’”) shall consist of the terms and conditions contained herein together with any additions or revisions of such terms and conditions mutually agreed to in writing by Seller and Buyer. Seller hereby expressly objects to and shall not be bound by any additional or different terms, whether printed or otherwise, in any purchase order, confirmation or other communication from Buyer to Seller unless specifically agreed to by Seller in writing. Prior courses of dealing, and verbal agreements not reduced to a writing signed by Seller, to the extent they modify, add to or detract from the contract, shall not be binding on Seller. Failure by Seller to exercise any right or remedy under the contract will not be deemed a waiver of such right or remedy unless such waiver is in writing signed by Seller, nor shall any waiver be implied from Seller’s acceptance of any payment. No waiver by Seller of any right shall extend to or affect any other right, nor shall a waiver by Seller of any breach by Buyer extend to any subsequent similar or dissimilar breach. The contract shall be for the benefit of Seller and Buyer and not for the benefit of any other person. Buyer may not assign this contract without the prior express written approval of Seller. Any provision of this contract that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction only, be limited or eliminated to the minimum extent required by that jurisdiction, and the remaining provisions of the contract will remain in full force and effect.
2. WARRANTY: Seller warrants title to the product(s) and, except as noted with respect to items not of Seller’s manufacture, also warrants the product(s) on date of shipment to Buyer, to be of the kind and quality described herein, and free of defects in workmanship and material. THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES OF MERCHANTABILITY AND FITNESS INCLUDING FITNESS FOR A PARTICULAR PURPOSE, AND CONSTITUTES THE ONLY WARRANTY OF THE SELLER WITH RESPECT TO THE PRODUCT(S). If within one (1) year from date of initial operation, but not more than eighteen (18) months from date of shipment by Seller of any item of product(s), Buyer discovers that such item was not as warranted above and promptly notifies Seller in writing thereof, Seller shall remedy such nonconformance by, at Seller’s option, adjustment or repair or replacement of the item and any affected part of the product(s). Buyer shall assume all responsibility and expense for removal, reinstallation, and freight in connection with the foregoing remedies. The same obligations and conditions shall extend to replacement parts furnished by Seller hereunder. Seller shall have the right of disposal of parts replaced by it. Buyer agrees to notify Seller, in writing, of any apparent defects in design, material or workmanship, prior to performing any corrective action back chargeable to Seller. Buyer shall provide a detailed estimate of the material and labors costs associated with the proposed remedy for expeditious review and approval by the Seller. Seller neither assumes, nor authorizes any person to assume for it, any other obligation in connection with the sale of its engineering designs or products. This warranty shall not apply to any products or parts of products which (a) have been repaired or altered outside of Seller’s factories or authorized service centers in any manner; or (b) have been subjected to misuse, negligence or accidents; or (c) have been used in a manner contrary to Seller’s instructions or recommendations. Seller shall not be responsible for design or fabrication errors due to inaccurate or incomplete information supplied by Buyer or its representatives. ANY SEPERATELY LISTED ITEM OF THE PRODUCT(S) WHICH IS NOT MANUFACTURED BY THE SELLER IS NOT WARRANTED BY THE SELLER, and shall be covered only by the express warranty, if any, of the manufactur er thereof. THIS STATES BUYER’S SOLE AND EXCLUSIVE REMEDY AGAINST SELLER AND ITS SUPPLIERS RELATING TO THE PRODUCT(S), WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY, AND WHETHER ARISING OUT OF WARRANTIES, REPRESENTATIONS, INSTRUCTIONS, INSTALLATIONS OR DEFECTS FROM ANY CAUSE. Seller and its suppliers shall have no obligation as to any product which has been improperly stored or handled, or which has not been operated or maintained according to instructions in Seller or supplier furnished manuals.
3. LIMITATION OF LIABILITY: IN NO EVENT SHALL SELLER OR ITS SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER ARISING, INCLUDING SUCH DAMAGES OCCASIONED BY SELLER’S NEGLIGENCE, NOR SHALL SELLER’S LIABILITY ON ANY CLAIM S FOR DAMAGES ARISING OUT OF OR CONNECTED WITH THE CONTRACT OR THE MANUFACTURE, SALE, DELIVERY OR USE OF THE PRODUCTS IN ANY EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCTS AND/OR SERVICES GIVING RISE TO THE CLAIM.
4. SCHEDULE/BUYER’S DATA: Shipping date or other applicable performance date is estimated on the basis of immediate receipt by Seller of Buyer’s order and all information, drawings and approvals to be furnished by Buyer, and the absence of delays, direct or indirect, resulting from or contributed to by circumstances beyond Seller’s reasonable control. Seller will in good faith endeavor to ship products or perform services by the estimated date. Seller shall have the right to make partial shipments. All changes in specifications or estimated shipping or performance date will be by mutual written agreement of Seller and Buyer, and Buyer hereby agrees that where such changes affect Seller’s time or cost of performance, an equitable adjustment in estimated shipping/performance date or purchase price, or both, will be made.
5. TERMINATION: This contract may not be modified or rescinded except by a writing signed by both Seller and Buyer. If all or part of the contract is terminated by Buyer’s modification or rescission, Buyer, in the absence of a contrary written agreement between Seller and Buyer, shall pay to Seller termination charges based upon Seller’s cost determined by accepted accounting principles, plus a reasonable profit on the entire order. Seller’s costs shall include any amount Seller must pay to its suppliers due to any termination by Seller of a purchase order for products or services intended for Buyer.
6. TERMS OF PAYMENT: Unless otherwise stated all payments shall be Letter of Credit or Net Thirty (30) days from the date of invoice, and for the services Net Thirty (30) days from the date the services are rendered, and in United States Dollars. If shipment is delayed by Buyer, date of readiness for shipment shall be deemed to be date of shipment for payment purposes. Cash discounts do not apply to cases, reels, spools or transportation charges. The purchase price for the products is F.O.B. first point of shipment unless otherwise agreed to in writing. Seller reserves the right to modify or withdraw credit terms at any time without notice and to require guarantees, security or payment in advance of the amount of sale. Seller shall also be entitled, in addition to all other remedies available at law or in equity, to recover reasonable attorneys’ fees and/or other expenses in collecting the purchase price or otherwise enforcing or successfully defending itself in respect of this contract.
7. TAXES: Any tax or other governmental charge upon the provision of services, or the production, sale, shipment, transfer, consumption, or use of the products which Seller is required to pay or collect from Buyer shall be paid by Buyer to Seller, unless Buyer furnishes Seller with exemption certificates acceptable to taxing authorities. Such amount shall be due whether or not included on the invoice.
8. TITLE AND INSURANCE: Title to and risk of loss of the products pass to Buyer at the F.O.B. point or EX WORKS point, except that Seller shall retain a security interest in the product(s) and proceeds and replacements thereof, regardless of mode of attachment of products to realty or other property, until the full price has been paid in cash. Buyer agrees to do all acts necessary to perfect and maintain said security interest, and to protect Seller’s interest by adequately insuring the product(s) against loss or damage from any external cause with Seller named as insured or co-insured and loss payee.
9. SHIPPING: Prior to shipping, Seller, if requested, will afford Buyer a reasonable opportunity to inspect the products in Seller’s plant. If no packaging, loading or bracing requirements are stated, Seller will comply with minimum specifications for the method of transportation specified. If no method of transportation is specified, shipment will be by a reasonable method of transportation. Any item of the product(s) on which manufacture or shipment is delayed by causes within Buyer’s control, or by causes which affect Buyer’s ability to receive the product(s), may be placed in storage by Seller for Buyer’s account and at Buyer’s risk.
10. SHORTAGES: Buyer shall submit all claims for shortages in writing to Seller within thirty (30) days from the date that Buyer receives the products; otherwise such claims shall be permanently waived. The purchase price for products will equal the unit price multiplied by the quantity shipped. Installation and final inspection of products prior to installation will be Buyer’s obligation.
11. DELAYS: Seller shall not be liable for any failure to perform its obligations under the contract resulting directly or indirectly from or contributed to by acts of God, acts of Buyer, civil or military authority, fires, strikes or other labor disputes, accidents, floods, war, riot, inability to secure material or transportation facilities, acts or omissions of carriers, or any other circumstances beyond Seller’s reasonable control. Seller shall have no liability under this contract than as otherwise expressly provided in this contract.
12. PATENTS: Seller will indemnify and hold Buyer harmless from and against any rightful claim of any third person by way of infringement of any United States Letters Patent by products which are of Seller’s own design and manufacture, but if Buyer furnishes specifications to Seller, Buyer will indemnify and hold Seller harmless from and against any such claim which arises out of compliance with the Buyer’s specifications; provided that the party seeking to be held harmless notifies the other party and gives it the right to defend. Seller makes no warranty that the products will be delivered free of the rightful claim of any third party by way of infringement of any other intellectual property rights or the like. Seller’s obligation under this paragraph shall not apply to any infringement consisting of the use of products as part of goods manufactured by Buyer or others. THIS PARAGRAPH SETS FORTH SELLER’S EXCLUSIVE AND LIMITED LIABILITY WITH RESPECT TO PATENTS.
13. EXPORT: Buyer understands that products supplied by Seller may be subject to the jurisdiction of U.S. export controls and trade sanctions, and Buyer represents and warrants that it will not violate U.S. export-related laws with respect to products supplied by Seller.
14. PROPRIETARY INFORMATION: Buyer will not disclose or make available to any third party Seller’s data or other proprietary information without Seller’s prior written authorization.