Scope
All sales of Seller are and shall be subject to these Conditions of Sale, which take precedence over all other terms and conditions. Seller rejects all additional, contrary or different terms and conditions proposed by Purchaser, and no additional, contrary or different terms and conditions shall be binding on Seller unless specifically accepted and agreed to by Seller in writing.
Terms of Payment
Unless otherwise specified, payment terms are ninety percent (90%) at the time of purchase order and ten percent (10%) on delivery. Payments of the initial and delivery amounts shall be due at the time the order is placed and upon delivery, respectively.
No installation, where applicable, shall begin and no support services shall be rendered until all amounts are received. Seller shall have no liability or obligation under any warranty while Purchaser is delinquent as to any payment to Seller.
If shipment is deferred at Purchaser's request, payments are nevertheless due after notice to Purchaser that the product is ready for shipment. Reasonable storage charges shall be paid by Purchaser after seven (7) days unless prior agreement was set in writing and signed by an officer of Seller.
Title
Purchaser shall be liable for payment in full of the purchase price of all products, applicable taxes and charges payable hereunder. Risk of loss shall pass to Purchaser as soon as the products have been delivered by Seller to carrier. However, title to such products shall remain with Seller and shall not pass to Purchaser until the price specified has been paid in full.
Purchaser agrees to execute within three (3) days of request by Seller any documents required by Seller to perfect title to the products.
Delivery and Handling
Delivery shall be CPT destination, prepaid and allowed, unless otherwise specified. All delivery and handling charges shall be paid by Purchaser, and Purchaser shall be responsible for providing insurance once the products are turned over to carrier.
Inspection at Factory
Orders are accepted based on inspection and acceptance at Seller's plant. Upon Purchaser's request, Seller will furnish a report to Purchaser to the effect that the products were inspected and tested and were found to meet specification requirements.
Delivery Schedule
Unless otherwise specified, products ordered will be shipped from Seller's plant within one (1) month of receipt of the order. Seller will use commercially reasonable efforts to effect shipment on or before the day indicated.
Seller shall not be liable for delay in performance or inability to perform occasioned by any unforeseen conditions or circumstances beyond Seller's reasonable control, including but not limited to strike, embargo, government regulation, Letter of Credit delays, war, terrorist act or inability to obtain materials or services.
If performance by Seller is delayed by reason of any such unforeseen conditions or circumstances beyond its reasonable control, Seller shall notify Purchaser, and the time for performance by Seller shall be extended for the period of such delay. Delays in delivery shall not be grounds for cancellation of order or reduction of purchase price.
Quotations and Prices
Unless otherwise specified, each quotation is firm for sixty (60) days.
Tax Payment
Any tax imposed by any federal, state or other governmental authority on the sale of Seller's products, and export and other tariffs, duties and customs, shall be paid by Purchaser in addition to the purchase price.
Notwithstanding anything to the contrary herein, if no sales tax is charged by Seller and the item is subject to sales tax in Purchaser's state, it is Purchaser's responsibility to pay such tax or reimburse Seller for any such tax paid by Seller upon receipt of Seller's invoice thereof.
Cancellation
An order once placed with and accepted by Seller can be cancelled only upon Seller's written agreement. In cases where Seller agrees to cancel an order, Purchaser agrees to a minimum cancellation fee of twenty-five percent (25%) of the purchase price.
Purchaser will be responsible to pay the full selling price, restocking fee or cancellation fee, whichever is appropriate, of special or custom products purchased by Seller to fulfill the delivery of products ordered under this agreement.
Warranty
Seller warrants that for the period of one (1) year from the date of delivery of the products, or as described below, all components manufactured and delivered by Seller will be free of manufacturing defect in material and workmanship. This warranty is predicated on door-to-door delivery in an air-ride van or the warranty is null and void. Seller reserves the right to refuse shipment in a non-air-ride vehicle.
Seller makes no warranty with respect to components which, by their nature, normally require replacement periodically consistent with normal use and maintenance, or as listed elsewhere in the applicable quotation. The above warranties do not cover components manufactured by others and which are separately warranted by the manufacturer. Seller shall cooperate with Purchaser in obtaining the benefits of the manufacturer's warranties for such items but assumes no obligation with respect thereto.
This warranty shall not apply to any Seller-manufactured components that have been repaired or altered by anyone not authorized by Seller in writing. The warranty shall not apply to any components subjected to misuse due to negligence, adverse environmental conditions, accident, or to any components not operated in accordance with printed instructions in the operation manual or good engineering, optical and electrical practice. Environmental conditions are described in the pre-installation guide, user manual and/or other literature.
Time, materials and expenses shall be billed to Purchaser at the rates then in effect for non-contract purchasers on any repairs or replacements not covered by the above warranties.
Seller's entire liability, and Purchaser's exclusive remedy, with respect to any breach by Seller of the foregoing warranties is limited to, at Seller's discretion, (a) return and refund of the purchase price paid, or (b) repair or replacement at Seller's factory of the products purchased, or any components thereof, which Seller has determined to be defective after inspection at Seller's factory.
All defective items replaced pursuant to the above warranty become the property of Seller. Costs of shipping both defective items and replacements shall be the responsibility of, and paid by, Purchaser.
THE ABOVE WARRANTIES ARE GIVEN EXPRESSLY IN LIEU OF ALL WARRANTIES INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. THE REMEDIES SET FORTH HEREIN ARE EXCLUSIVE. SELLER'S PERFORMANCE THEREOF SHALL CONSTITUTE FULFILLMENT OF ALL LIABILITIES OF SELLER WHETHER BASED ON CONTRACT, NEGLIGENCE OR OTHERWISE WITH RESPECT TO AND ARISING OUT OF SELLER'S PRODUCTS. SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES.
The limitation on damages set forth above shall apply to all aspects of these Conditions of Sale and to any other documents to which these are attached or in which these Conditions of Sale are incorporated, including, without limitation, to Seller's obligations hereunder and thereunder. Seller shall have no liability or obligation under any warranty if Purchaser is delinquent in making any payment due to Seller.
Remedies of Purchaser
Purchaser may cancel an order if Seller has materially breached this agreement and any money paid to date will be reimbursed, subject to limitations set forth herein. The foregoing shall be the exclusive remedy of Purchaser for breach by Seller, other than Seller cancellation.
Remedies of Seller
If Purchaser fails to pay the purchase price for products or services ordered, or any other amount payable with respect thereto as it becomes due, or wrongfully rejects the products or services or any part thereof, then Seller shall have the right to recover, in addition to the purchase price of the said products and services and all other amounts payable in connection therewith, all costs incurred by Seller in recovering money due.
In addition to the foregoing and all other remedies that Seller may have hereunder or by law, Seller without notice (a) may bill and declare due and payable all amounts payable with respect to the products under this or any other agreement or contract between Seller and Purchaser, (b) may suspend shipment hereunder and any other agreement or contract between Seller and Purchaser until such default, breach or rejection is cured, (c) may cancel any undelivered portion of this and/or any other agreement or contract between Seller and Purchaser in whole or in part, provided that Purchaser shall remain liable for all products delivered and for damages, and/or (d) may offset any liability owed to Purchaser as part of this or any other agreement or contract between Seller and Purchaser.
Ability of Seller to Perform
Seller has the option to reject or cancel an order with no penalty if for any reason it becomes impractical or impossible to manufacture the ordered products.
Patents and Copyright
If any item in Seller's products sold hereunder, when used for its normal purpose, is charged with infringement of a United States patent issued on or before the date of this agreement, and if Purchaser has given prompt written notice of this charge, Seller, at its option, (a) shall obtain for Purchaser the right to use such item, free of charge, (b) shall substitute for such item another equally suitable item, or (c) at Seller's expense shall institute or defend any suit or legal proceeding which may arise as a result of such charge and in any such suit or legal proceeding shall satisfy any final award for such infringement.
Seller's obligations hereunder are subject to the conditions that the charged infringement not arise from the combination of the items furnished with other equipment, or from the use of the equipment in the performance of any patented process. These provisions set forth Seller's entire responsibility for any claim or charge of patent infringement against Purchaser.
Copying or Replication of Products
The products sold are for Purchaser's individual use and may not be copied or replicated. Purchaser shall be liable for all damages, including loss of anticipatory profits, incurred by Seller as a result of such conduct.
Safety Obligations
Purchaser shall use safe operating procedures in the use of all products supplied by Seller, including Material Safety Data Sheets supplied with any chemicals that may be supplied, and the use of all safety devices and guards when operating equipment. Purchaser shall maintain the same in proper working order.
If Purchaser fails to observe the obligations contained in this paragraph, Purchaser agrees to indemnify and hold Seller harmless from any liability or obligation incurred by Seller arising out of Purchaser's use or misuse of such products, including, without limitation, liability to persons injured directly or indirectly in connection with the use or operation by Purchaser of the products. The foregoing indemnification shall in no event be deemed to have expanded Seller's liability for the products.
Seller's products are not for any cosmetic, drug or household application. It is a condition of each order that only qualified individuals, trained and familiar with procedures suitable for the products ordered, will handle them.