Detailed Terms and Conditions of Sale
Unless otherwise provided, it is agreed that sales are made on the terms, conditions and warranties contained herein and that to the extent of any conflict, the same take precedence over any terms or conditions which may appear on Buyer’s order form. Seller shall not be bound by Buyer’s terms and conditions unless expressly agreed to in writing. In the absence of written acceptance of these terms, acceptance of or payment for any of the articles covered hereby shall constitute an acceptance of these terms and conditions. Products covered by this order shall be deemed finally inspected and accepted within fifteen days following delivery thereof, unless within said period Purchaser shall give written notice of rejection or of any claim.2. TITLE, DELIVERY, RISK OF LOSS AND SHIPPING
a. Title to and risk of loss of all goods sold hereunder by Seller shall pass to Buyer subject to Seller’s right of stoppage in transit upon their delivery F.O.B. Seller’s factory to an agent of Buyer, including a common carrier or warehouse as hereinafter provided. Whenever transportation rates and carrier’s liability for damage depend upon the value of the shipment as declared by shipper, Seller will declare such value as will entitle Buyer to have goods shipped at the lowest permissible transportation rates unless otherwise instructed in writing by Buyer. Buyer will furnish written shipping instructions for all goods as promptly as possible. In the absence of such instructions, Seller may, at any time, do either of the following for the account and at the expense and risk of Buyer. Arrange for shipment of the goods by a carrier of its own selection to Buyer’s place of business or other destination reasonably believed to be suitable, or warehouse the goods. Buyer will not hold Seller liable for loss or damage attributed to negligence either in selection of the carrier or the warehouse or in agreeing with either of them to contract terms on Buyer’s behalf.
b. Seller reserves the right to make deliveries in installments. Partial shipments will be billed as made and payments therefor are subject to the terms of payment set forth in this order. The delivery of part of any order shall not obligate Seller to make further deliveries. All delivery indications are approximate and are dependent in part upon prompt receipt of all necessary information to service an order. Seller reserves the right to allocate inventories and production when, in its opinion, such allocation is necessary.
c. Delivery promise is based on Seller’s best estimate of the date material will be shipped from Seller’s factory. Seller assumes no responsibility for losses, damage or consequential damages due to delays.3. PRICES AND PAYMENTS
Prices quoted are based upon manufacture of quantities and types originally specified and are subject to revision when interpretation or engineering changes are initiated by Buyer. Prices are based upon present cost of materials and labor and are subject to change without notice. Applicable prices and pricing policy will be those in effect on the date of shipment. If deliveries are made in installments,
each installment shall be separately invoiced and paid for when due without regard to other deliveries. Seller reserves the right at any time to revoke any credit extended to Buyer because of Buyer’s failure to pay for any articles when due or for any other reason deemed good and sufficient by Seller, and in such event all subsequent shipments shall be paid for on delivery. In the event Seller exercises any rights it may have to stop articles in transit because of Buyer’s financial condition. Seller may at its option resell such articles at public or private sale without notice to Buyer and without affecting Seller’s breach. In the event that Seller cancels Buyer’s order due to nonperformance of Buyer, or if Buyer otherwise fails to purchase the quantity of devices necessary to qualify for the quantity price involved, Seller shall invoice Buyer for the price in effect at the time of shipment for the quantity actually purchased. The issuance by Seller of such invoice shall not constitute a waiver or limitation of any other remedy available to Seller.4. TAXES
In addition to the agreed purchase price of the goods, any and all taxes (not including any income or excess profit taxes) which may be imposed by any taxing authority, arising from the sale, delivery or use of the goods and for which Seller may be held responsible for collection or payment, either on its own behalf or that of Buyer, shall be paid by Buyer to Seller upon Seller’s demand.
5. BUYER’S FINANCIAL STATUS
If before completion of performance of this order by Seller a receiver or trustee is appointed of any of Buyer’s property, or Buyer be adjudicated as bankrupt, or application for reorganization under the Bankruptcy Act be filed by or against Buyer which shall not be dismissed within thirty (30) days, or if Buyer becomes insolvent or makes an assignment for the benefit of creditors, or takes, or attempts to take, the benefit of any insolvency acts, or an execution be issued pursuant to a judgment rendered against Buyer, or should buyer be unable to refuse to make payment to Seller in accordance with any of its obligations to Seller, Seller may at its option in any such events terminate this order by giving to Buyer a written notice of its intention to do so and Seller shall thereupon be relieved of any further obligations to Buyer and Buyer shall reimburse Seller for its termination costs and expenses determined in accordance with generally accepted accounting principles, plus a reasonable allowance for profits.
6. WARRANTIES, REMEDIES AND LIMITATIONS
a. Defective Goods: (I) Seller warrants to Buyer that at the time of delivery the goods sold hereunder will be free from defects in material and manufacture and will conform substantially to Seller’s applicable specifications as stipulated in this order. Seller’s liability and Buyer’s remedy under this warranty are limited to the repair or replacement at Seller’s election, of goods or parts thereof returned to Seller which are shown to Seller’s reasonable satisfaction to have been defective; provided that written notice of the defect shall have been given by Buyer to Seller no later than one year after the date of delivery of such goods by Seller. Transportation charges for the return of defective goods to Seller and their reshipment to Buyer and the risk of loss thereof will be borne by Seller only if returned in accordance with shipping instructions from Seller.
(ii) The foregoing warranty shall not apply where the goods furnished are defective in material or manufacture as a result of Seller’s substantially conforming to designs and specifications furnished by the Buyer, or manufacturing such goods according to a manufacturing process recommended by the Buyer.
b. Title: Seller warrants to Buyer that it will convey good title to the goods sold hereunder. Seller’s liability and Buyer’s remedy under this warranty are limited to the removal of any title defect or, at the election of the Seller, to the replacement of the goods or parts thereof which are defective in title, provided, however, that the rights and remedies of the parties with respect to patent infringement shall be limited to the provisions of subparagraph “c” below.
c. Patent Infringement: Seller shall conduct, at its own expense, the entire defense of any claim, suit or action alleging that, without further combination, the use or resale by Buyer or any subsequent purchaser or user of the goods delivered hereunder directly infringes any United States patent, but only on the conditions that (a) Seller receives prompt written notice of such claim, suit or action and full opportunity and authority to assume the sole defense thereof, including settlement and appeals, and all information available to Buyer and defendant for such defense; (b) said goods are made according to a specification or design furnished by Seller or, if a process patent is involved, the process performed by the goods is recommended in writing by the Seller; and (c) the claim, suit or action is brought against Buyer or one expressly indemnified by Buyer.Provided all of the foregoing conditions have been met, Seller shall, at its own expense, either settle said claim, suit or action or shall pay all damages, and costs awarded by the court therein and, if the use or resale of such goods is finally enjoined, Seller shall, at Seller’s option, (i) procure for defendant the right to use or resell the goods, (ii) replace them with equivalent non-infringing goods, (iii) modify them so they become non-infringing but equivalent or (iv) remove them and refund the purchase price (less a reasonable allowance for use, damage and obsolescence). If a claim, suit or action is based on a design or specification furnished by Buyer or on the performance of a process not recommended in writing by Seller, or on the use of sale of the goods delivered hereunder in combination with other goods not delivered to Buyer by Seller, Buyer shall indemnify and save Seller harmless therefrom.
d. SUBJECT TO THE TERMS OF THIS ARTICLE 6, THE FOREGOING WARRANTIES EXTEND TO BUYER ONLY AND NOT TO CUSTOMERS OR USERS OF BUYER’S PRODUCT. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE GIVEN AND ACCEPTED IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE THE REMEDIES OF THE BUYER FOR ANY BREACH OF WARRANTY SHALL BE LIMITED TO THOSE PROVIDED HEREIN TO THE EXCLUSION OF ANY AND ALL OTHER REMEDIES INCLUDING, WITHOUT LIMITATION, INCIDENTAL OR CONSEQUENTIAL DAMAGES. NO AGREEMENT VARYING OR EXTENDING THE FOREGOING WARRANTIES. REMEDIES OR THIS LIMITATION WILL BE BINDING UPON SELLER UNLESS IN WRITING, SIGNED BY A DULY AUTHORIZED OFFICER OF SELLER. IN NO EVENT SHALL SELLER BE LIABLE FOR CONSEQUENTIAL DAMAGES.
a. No termination by Buyer for default shall be effective unless and until Seller shall have failed to correct such alleged default within thirty (30) days after receipt by Seller of a written notice specifying such defaults. The Seller shall not be liable for any delay in or failure of performance hereunder due to any cause beyond its control. Such causes include, but are not limited to, fire, strike, insurrection, riot, flood, epidemic, embargoes, quarantine restrictions, war, acts of God, acts of the Buyer, interruptions of transportation or inability to obtain necessary labor, materials or facilities. The delivery schedule hereof shall be considered extended by a period of time equal to the time lost because of any delay which is excusable under this clause. In the event Seller is unable wholly or partially to perform because of any cause beyond its control, Seller may terminate this order without any further liability to buyer.
b. Buyer may terminate this order, other than for default if such right is applicable, only upon payment of all Seller’s costs incurred for and reasonably allocated to the terminated portion of the work in accord with generally accepted accounting principles, plus a reasonable profit on such costs.
8. COMPLIANCE WITH FAIR LABOR STANDARDS ACT
Seller hereby certifies that all goods sold hereunder which are produced or manufactured in the United States of America are produced in compliance with the Fair Labor Standards Act of 1938 as amended (29 U.S. Code 201-219). All requirements as to the certificate contemplated in the October 26, 1949 amendment to the Fair Labor Standards Act of 1938 shall be considered as satisfied by this certification.
9. MODIFICATIONS, WAIVERS, APPLICABLE LAWS, CONTRACTION AND CAPTIONS
No modifications of this order or waiver of its provisions shall be binding unless in writing signed by both parties hereto. This order shall be interpreted in accordance with and the construction thereof shall be governed by the laws of the State of