1. PRICE
A. All quotations are made and orders accepted on the basis of Seller’s
prices in effect at the time of shipment, except as otherwise specifically
agreed in writing. All prices are subject to change without notice.
B. Any taxes or fees, which the Seller may be required to pay or collect will
be charged to the Purchaser.
C. Unless otherwise stated all prices are F.O.B. Seller’s factory and do not
include insurance, duties, taxes, and similar charges.
D. All payments shall be made in United States funds.
2. TERMS
The terms of payment are net 30 days from the date of invoice except as
otherwise stated in a written agreement signed by a duly authorized
representative of Seller. Past due accounts shall: (a) bear interest at the rate
of one and one half (1½) per cent per month, an 18% annual rate, except to the
extent otherwise provided by law and (b) accrue reasonable collection costs
(including legal fees and expenses) payable as incurred.
3. SHIPPING AND DELIVERY
A. The Seller shall have no responsibility to obtain or maintain insurance, and
all responsibility of the Seller shall cease when products have been delivered
to the appropriate carrier for shipment to the Purchaser, properly addressed or
with the proper bills of lading attached, whether or not freight is prepaid.
B. Unless specific shipping instructions are received from the Purchaser
substantially before the shipment date, the Seller reserves the right to use its
judgment in selecting the means of shipment. Additional shipping costs incurred
at the request of the Purchaser will be charged to the Purchaser.
C. Shipping dates given by Seller in advance of actual shipment are estimates
only.
4. WARRANTY
A. Seller warrants these products to be substantially free from defects in
materials and workmanship. Seller will replace or repair any products which
shall prove to be materially defective, providing the Purchaser shall have
reasonably inspected products received and notified Seller of any apparent
defects within 30 days of receipt of shipment. At Seller’s option the
Purchaser may be credited for the price charged for the defective product in
lieu of replacement or repair. This warranty is for the benefit of, and must be
exercised directly by, Purchaser only, and shall not convey any rights
whatsoever to any third party. Seller makes no other warranty, express or
implied, and disclaims the existence of any other warranty whether of
merchantability, fitness for a particular purpose, or otherwise. Seller shall
not, in any event, be liable for damages in respect to the sale or use of any
products sold hereunder, in any amount greater than the amount of the purchase
price received by Seller for such products.
B. Products delivered by Seller shall not be considered as defective if they
substantially fulfill the Purchaser’s performance requirements and are in
accordance with approved samples, specifications or drawings.
C. No allowance will be granted for any repairs made by Purchaser without
written consent of Seller.
D. Seller shall not, in any event, be liable for any consequential, incidental
or special damages or costs or expenses in the event of any breach of warranty
or in the event of any default in any term herein or in the event of any loss,
damage, injury or cost resulting from or arising out of or in respect of the
products being sold hereunder.
E. Except as Seller otherwise may agree in a separate agreement signed by its
duly authorized officer, Seller makes no representations or warranties, express
or implied, regarding compliance (including, without limitation, notification
and/or registration) in the manufacture, distribution in commerce, processing,
use, or disposal of the materials which are the subject of this order, or the
constituent substances thereof, with the Toxic Substance Control Act (P.L.
94-469) or the regulations promulgated thereunder (or any similar federal or
state statute or regulation), as said act and regulations may be amended from
time to time; including in the above disclaimer, without limitation,
representations and warranties regarding inclusion of said materials or
substances in the various lists compiled by the U.S. Environmental Protection
Agency and/or state authorities under any of the aforesaid acts and/or
regulations.
5. CLAIMS AND RETURNS
A. No products will be accepted for credit by the Seller if they are
substantially in accordance with the product specifications described in the
Purchaser’s purchase order.
B. All claims for shortages, differences in the products shipped, or poor
quality must be made in writing within 30 days of receipt of shipment.
C. No return shall be shipped to the Seller except after securing written
instructions from the Seller. Seller shall have the sole right to determine
whether returned articles or parts shall be repaired or replaced. Seller agrees
to assume roundtrip transportation costs for defective or nonconforming articles
or parts in an amount not to exceed normal truck common carrier shipping charges
within the continental United States, provided, however, that if Seller’s
inspection discloses that the returned article or part does not require repair
or replacement, Seller’s usual charges will apply and the Purchaser shall
assume roundtrip shipping charges.
D. Damage incurred at the Purchaser’s location such as in the process of
inspection, handling, and repackaging shall be the sole responsibility of the
Purchaser.
6. LIABILITY FOR LOSS, DAMAGE, OR DELAY
The Seller shall not be liable for any loss or damage suffered by the Purchaser,
resulting directly or indirectly from, or through, or arising out of any delay
in filling an order or in shipment or delivery of any products, or resulting
directly or indirectly from or through delay arising out of any of the
following: fire, flood, strike, accident, civil commotion, riot or war, shortage
of labor, fuel, materials or supplies, regulations, priorities, orders or
embargoes, imposed by any civil or military government; or any other cause or
causes (whether or not similar to the foregoing) beyond the reasonable control
of the Seller.
7. CANCELLATION, ALTERATION OR DELAY REQUESTED BY
THE PURCHASER
A. Requests by the Purchaser to cancel or alter an order or to temporarily or
permanently stop work or delivery must be made in writing. Acceptance to be
effective must be in writing. Seller reserves the right to accept or refuse any
such request and to set the additional charges and other conditions under which
a request is granted. Any such additional charges will be due and payable 30
days after notification of Purchaser by Seller.
B. All products, parts or materials ordered or held by the Seller at the
Purchaser’s request shall be at the risk and expense of the Purchaser. The
Seller, at its option, may invoice the Purchaser for all costs and expenses
resulting from such a request. Such invoices are due and payable 30 days from
issuance.
8. TOOLS, DIES, DESIGNS, DRAWINGS, JIGS, AND
FIXTURES
A. The Seller shall retain ownership, possession and control of all tools, dies,
designs, drawings, jigs, and fixtures prepared for the manufacture of products
subject to any order except where other written arrangements are specifically
made between the Seller and the Purchaser.
B. The Seller shall not be responsible for problems resulting from errors in
artwork, drawings, and/or specifications supplied by the Purchaser.
9. UNDER AND OVER SHIPMENTS
The Seller reserves the right to over-ship or under-ship any order by any amount
not to exceed five (5) percent of the amount ordered, payment to be based on the
products shipped.
10. PATENTS, TRADEMARKS, AND COPYRIGHTS
The Seller shall indemnify the Purchaser for damages for infringement of
patents, trademarks or copyrights relating solely to products sold hereunder
which are products of the Seller’s design, and the Purchaser shall so
indemnify the Seller for products that are not of Seller’s design. No
indemnity shall apply to liability resulting from the manner of use of the
products by the Purchaser or from combining the products with any other items.
Each party shall give the other reasonable notice of any claim or infringement
to which this indemnity applies and offer to allow the other to defend any suit
resulting therefrom; otherwise, the party to notice shall not be liable,
directly or indirectly, for any damages from such infringement. Anything herein
to the contrary notwithstanding, any claim for indemnification shall be subject
to the limitations set forth in the last sentence of subparagraph 4.A. and in
subparagraph 4.D.
11. INSOLVENCY OF PURCHASER
If the Purchaser shall make an assignment for the benefit of creditors or a
voluntary or involuntary petition or other action in bankruptcy or for
reorganization or under any other insolvency law shall be filed by or against
the Purchaser or the Purchaser shall admit its inability to pay its debts or a
trustee, receiver, or liquidator is appointed for any part of the assets of the
Purchaser, then Seller’s obligation to continue to perform hereunder
immediately shall cease, unless Seller thereafter otherwise agrees in writing
with the Purchaser’s trustee or representative. Charges to the Purchaser shall
be governed by the provisions of Paragraph 7.
12. REPRODUCTION RIGHTS
Drawings, specifications, reports, photographs and other data of Seller relating
to this order and all proprietary rights and interests therein and the subject
matter thereof shall remain the property of the Seller (which term, for purposes
of this paragraph only, shall include any and all affiliates of Seller). The
Purchaser agrees that it will not use the Seller’s drawings, specifications,
and other materials and information above mentioned for the production or
procurement of products covered by this order or any similar product from any
other source, or reproduce the same or otherwise appropriate them without the
written authorization of the Seller. The Purchaser shall cause its employees,
agents and others having access to such information to be aware of, and to abide
by, the terms of this paragraph.
13. NONDISCLOSURE
The Purchaser agrees that it will not disclose or make available to any
unauthorized third party any drawings, data, or other information pertaining to
this order which is proprietary to Seller without obtaining Seller’s prior
written consent. The Purchaser shall cause its employees, agents and others
having access to such information to be aware of, and to abide by, the terms of
this paragraph.
14. SALES TERMS AND CONDITIONS
These terms and conditions constitute the entire agreement between the
parties with regard to the subject matter hereof, and supersede all oral or
written agreements and understandings with regard to such subject matter. No
additions to or modifications of Seller’s terms and conditions shall be
binding upon Seller unless agreed to by Seller in a signed document executed by
an authorized officer of Seller. If a purchase order or other communication from
Purchaser includes any term or condition contrary to, or in addition to, the
terms and conditions stated herein, Purchaser’s acceptance of the products and
services which are the subject hereof, after receipt of these terms and
conditions from Seller, shall constitute Purchaser’s complete and
unconditional assent to the terms hereof notwithstanding anything to the
contrary in any such earlier purchase order or communication, unless Purchaser
clearly instructs Seller in writing, prior to acceptance, to cancel the order.
Purchaser’s communication of contrary or additional terms and conditions
following acceptance of the products and services, shall be construed as an
offer to supplement and/or amend Seller’s terms and conditions. Such offer
shall be deemed rejected unless accepted by Seller in the manner set forth in
the second sentence of this paragraph.
15. MISCELLANEOUS
Any unenforceable provision shall be reformed to the extent necessary to
permit enforcement thereof. The parties both acknowledge that damages at law may
be an inadequate remedy for the breach or threatened breach of Paragraph 12
and/or 13 of these terms and conditions and that, in the event of a breach or
threatened breach by a party of any provision hereof, Seller’s rights and
obligations hereunder shall be enforceable by injunction or other equitable
remedy, in addition to and not in lieu of any rights to damages at law. This
agreement shall be construed in accordance with the laws of the Commonwealth of
Massachusetts, without regard to conflicts of laws provisions thereof. Changes,
amendments or modifications in or additions to any provision contained herein
may be made only by a written instrument executed by the parties thereto. All
notices and waivers must be by written instrument executed by the party to be
bound thereby. Notices are deemed given when received, regardless of the means
of transmission.
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