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Terms and Conditions
<br />1. Annlirahle Terms and Cemditions
<br />(a) These terms and conditions of sale establish the rights,
<br />obligations, and remedies of Buyer and Seller that apply to any order issued by
<br />Buyer for the purchase of Seller's products and/or services ("Products'). No
<br />additional or different terms or conditions, whether contained in Buyer's
<br />purchase order form or in any other document or communication pertaining to
<br />Buyer's order, will be binding on Seller unless accepted in writing by an
<br />authorized representative of Seller. Seller expressly objects to and rejects any
<br />additional or different terms and conditions, which shall be ineffective.
<br />(b) If Seller's order acknowledgement, invoice, other document, or
<br />electronic transmittal including or attaching these terms and conditions is found
<br />to be an acceptance of an offer, acceptance is expressly made conditional
<br />upon Buyer's assent solely to these terms and conditions, and acceptance of
<br />any part of Products delivered by Seller shall be deemed to constitute such
<br />assent by Buyer. If the order acknowledgement, invoice, other document, or
<br />electronic transmittal including or attaching these terms and conditions
<br />constitutes an offer, Buyer's acceptance of the offer is hereby limited to the
<br />terms of the offer.
<br />2. Prir y Payment Trams and Title
<br />(a) All prices represent those in effect at the time of quotation and
<br />are subject to change without notice. Unless prices are bid or quoted as "firm,"
<br />Seller reserves the right to invoice at prices in effect at the date of shipment,
<br />regardless of any prior bid and whether notice was received by Buyer. Unless
<br />otherwise indicated, prices are stated in United States dollars and are
<br />exclusive of shipping, handling, shipping insurance, duties, and sales, use,
<br />excise or similar taxes. Export packaging or any other special handling
<br />requested by Buyer will be at Buyer's expense. A service charge of $25 will be
<br />assessed for any order less than $250. Seller requires a minimum $100
<br />emergency handling charge for all orders that require shipment the same day
<br />or next day.
<br />(b) Buyer acknowledges that the pricing of the Products has been
<br />set based on the agreed allocation of risks contained in these terms and
<br />conditions. If, notwithstanding the provisions of these terms and conditions, a
<br />court of competent jurisdiction determines that Buyer's terms and conditions
<br />apply to an order, then Seller shall have the right to either (i) modify the prices
<br />(including retroactively) according to the additional level of risk and
<br />responsibility that Buyer's terms and conditions require Seller to undertake; or
<br />(ii) cancel the order any time after such a determination without liability for the
<br />termination other than for the Products already delivered on these terms and
<br />conditions.
<br />(c) Unless different credit terms have been extended to Buyer in
<br />writing by Seller, payment terms are net 30 days after delivery or date of
<br />invoice, whichever first occurs, in the currency invoiced. Seller reserves the
<br />right to modify or withdraw credit terms at any time without notice. If Buyer
<br />fails to fulfill the terms of payment, Seller may defer further shipments to Buyer
<br />or, at its option, cancel the unshipped portions of Buyer's orders. Buyer
<br />agrees to pay interest on all past due invoices at the lesser of 18% per annum,
<br />compounded monthly, or the highest contractual rate allowable under the law.
<br />(d) Until full payment of all obligations of the Buyer for an order,
<br />Seller reserves the title (but not the risk of loss) to all Products furnished under
<br />that order. If the Buyer defaults in payment or performance or becomes
<br />subject to insolvency, receivership or bankruptcy proceedings or makes an
<br />assignment for the benefit of creditors, or without the consent of Seller
<br />voluntarily or involuntarily sells, transfers, leases or permits any lien or
<br />attachment on the Products, Seller may treat all amounts then or thereafter
<br />owing by Buyer to be immediately due and payable and Seller at its election
<br />may repossess Products for which Buyer has not paid in full. In the event of
<br />repossession of Products under this section or under the section entitled
<br />"Security Interest," Buyer agrees that Seller may enter the premises where the
<br />Products may be located and remove them without notice and without being
<br />liable to Buyer for such repossession. Buyer will not set off invoiced amounts
<br />or any portion thereof against sums that are due or may become due from
<br />Seller, its parents, affiliates, or subsidiaries. Buyer grants Seller a security
<br />interest in Products for which title has passed to Buyer, products in which
<br />Products are incorporated, and Products that Seller sells (including all
<br />Products acquired hereafter from Seller, and all accessions, substitutions,
<br />replacements, and additions, and any proceeds from sale or disposition of
<br />Products), as security for performance by Buyer of all of its paymentobligations
<br />under these terms and conditions (including obligations regarding future
<br />advances). Buyer consents to Seller's execution of any documents to evidence
<br />and perfect this security interest, and agrees to execute the same if requested
<br />by Seller.
<br />3, DPliyerr and Risk nt I nss
<br />(a) Unless otherwise agreed in writing, all deliveries of Products
<br />will be EXW (Incoterms 2000) Seller's facility. Products will be packed in
<br />Seller's standard commercial shipping packages. Charges for shipping may
<br />not reflect net transportation costs paid by Seller. Buyer shall reimburse
<br />Seller for all costs of storage and handling incurred by Seller after the date that
<br />Seller is prepared to make shipment.
<br />(b) Delivery and shipping dates are approximate and represent
<br />Seller's best estimate of the time required to make delivery or shipment. Time
<br />is not of the essence with respect to the transactions covered by these terms
<br />and conditions, except with respect to Buyer's obligation to make all related
<br />payments. Seller's obligations under these terms and conditions will be
<br />dependent upon Seller's ability to obtain necessary raw materials and
<br />components. Seller shall have the right to make partial deliveries and to ship
<br />up to forty (40) days in advance of shipping date.
<br />4. Arra. to anre
<br />Acceptance shall occur, if not before, when Buyer fails to reject
<br />within ten (10) days after delivery of the Products. Buyer may rightfully reject
<br />only when a reasonable inspection shows that the Products fail to conform
<br />substantially to the specifications for the Products. Buyer waives any right to
<br />revoke acceptance. Buyer's remedies for any nonconformity detected after
<br />acceptance are limited to those expressly provided in these terms and
<br />conditions for breach of warranty.
<br />5, 1 imited Warranty
<br />(a) Seller warrants to each original Buyer of Products that
<br />Products are, at the time of delivery to the Buyer, in good working order and
<br />conform to Seller's official published specifications, provided that no warranty
<br />is made with respect to any Products, component parts, or accessories
<br />manufactured by others but supplied by Seller.
<br />(b) Seller's obligation under this warranty for any Product proved
<br />not to be as warranted within the applicable warranty period is limited to, at its
<br />option, replacing the Product, refunding the purchase price of the Product, or
<br />using reasonable efforts to repair the Product during normal business hours at
<br />any authorized service facility of Seller. All costs of transportation of any
<br />Product claimed not to be as warranted and of any repaired or replacement
<br />Product to or from such service facility shall be borne by Buyer.
<br />(c) Seller may require the return of any Product claimed not to be
<br />as warranted to one of its facilities as designated by Seller, transportation
<br />prepaid by Buyer, to establish a claim under this warranty. The cost of labor
<br />for removing a Product and for installing a repaired or replacement Product
<br />shall be borne by Buyer. Replacement parts provided under the terms of this
<br />warranty are warranted for the remainder of the warranty period of the
<br />Products in which they are installed to the same extent as if such parts were
<br />original components. Warranty services provided under these terms and
<br />conditions do not assure uninterrupted operations of Products; Seller shall not
<br />be liable for damages caused by any delays involving warranty service.
<br />(d) The warranty period for Products is the shorter of twelve (12)
<br />months from the date of installation or eighteen (18) months from the date of
<br />shipment unless otherwise agreed by Seller in writing.
<br />(e) EXCEPT FOR THE EXPRESS WARRANTY SET FORTH
<br />ABOVE, SELLER PROVIDES PRODUCTS AS -IS AND MAKES NO OTHER
<br />REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
<br />STATUTORY OR OTHERWISE, REGARDING THE PRODUCTS, THEIR
<br />FITNESS FOR ANY PARTICULAR PURPOSE, THEIR MERCHANT] BILITY,
<br />THEIR QUALITY, THEIR NON INFRINGEMENT, OR OTHERWISE. IN NO
<br />EVENT SHALL SELLER BE LIABLE FOR THE COST OF PROCUREMENT
<br />OR INSTALLATION OF SUBSTITUTE GOODS.
<br />g, 1 IMITATION OF I IARILITY
<br />IN NO EVENT WILL SELLER BE LIABLE FOR ANY SPECIAL
<br />DAMAGES, CONSEQUENTIAL DAMAGES, INDIRECT DAMAGES,
<br />INCIDENTAL DAMAGES, STATUTORY DAMAGES, EXEMPLARY OR
<br />PUNITIVE DAMAGES, LOSS OF PROFITS, LOSS OF REVENUE,
<br />LIQUIDATED DAMAGES, OR LOSS OF USE, EVEN IF INFORMED OF THE
<br />POSSIBILITY OF SUCH DAMAGES. SELLER'S LIABILITY FOR DAMAGES
<br />ARISING OUT OF OR RELATED TO A PRODUCT SHALL IN NO CASE
<br />EXCEED THE PURCHASE PRICE OF THE PRODUCT FROM WHICH THE
<br />CLAIM ARISES. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
<br />THESE LIMITATIONS AND EXCLUSIONS WILL APPLY WHETHER
<br />SELLER'S LIABILITY ARISES OR RESULTS FROM BREACH OF
<br />CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING BUT NOT
<br />LIMITED TO NEGLIGENCE, GROSS NEGLIGENCE, MALICE, OR
<br />INTENTIONAL CONDUCT), STRICT LIABILITY, BY OPERATION OF LAW,
<br />OR OTHERWISE.
<br />7, ranrellatinn and Return of Produrts
<br />Orders shall not be subject to cancellation or modification either in
<br />whole or in part without Seller's written consent and then only with terms that
<br />will reimburse Seller for reasonable termination charges, including all progress
<br />billings and all incurred direct manufacturing costs. Seller's written consent
<br />must be given in advance of Buyer's return of Products for credit. Seller
<br />reserves the right to cancel any sale of Products without liability to Buyer
<br />(except for refund of monies already paid), if the manufacture or sale of the
<br />goods is or becomes technically or economically impractical.
<br />8, Forre Mg„ .r 'rP
<br />Seller shall not be liable for any failure to perform or delay in
<br />performing its obligations resulting directly or indirectly from or contributed to
<br />by any acts of God, acts of Buyer or those under Buyer's control, acts of
<br />government or other civil or military authorities, priorities, strikes, or other labor
<br />disputes, fires, accidents, floods, epidemics, war, riot, embargoes, delays in
<br />transportation, lack of or inability to obtain raw materials, components, labor,
<br />fuel or supplies, or other circumstances beyond Seller's reasonable control
<br />("Force Majeure Event"). If Seller elects, the time for performance shall be
<br />extended by a period of time equal to the time lost because of any delays
<br />caused by reasons of a Force
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