Terms and Conditions
Products furnished and services rendered by (hereinafter 'Products') are sold only on the terms and conditions stated herein. Notwithstanding any terms or conditions on Customer's order, Seller's performance of any contract is expressly made conditional on Customers agreement to Seller's Terms and Conditions unless otherwise specifically agreed to in writing by the Parties. In the absence of such agreement, commencement of performance and/or delivery shall be for Customer's convenience only and shall not be deemed or construed to be acceptance of Customer's Terms & Conditions or any of them. If a contract is not earlier formed by mutual agreement in writing, acceptance of any Product shall be deemed acceptance of the terms and conditions stated herein. Seller's failure to object to any term or condition contained in any communication from Customer shall not be deemed a waiver of these terns and conditions.
2. QUOTATIONS AND PRICES:
All quotations are subject to the terms and conditions stated herein as well as any additional terms and conditions that may appear on the face thereof. In the case of a conflict between the terms and conditions stated herein and those appearing on the face of such quotation, the latter shall control. Seller's prices and quotations are subject to the following:
(a) Unless otherwise specified in writing, all quotations are firm for, and expire, 180 days after the date thereof and constitute offers, provided that budgetary quotations and estimates are for preliminary information only and shall neither constitute offers, nor impose any responsibility or liability upon Seller.
(b) Unless otherwise stated in writing by Seller, all prices quoted shall be exclusive of transportation, insurance, taxes (including, without limitation, any use tax, sales tax or similar tax), customs fees, duties and other charges related thereto, and Customer shall report and pay any and all such charges and hold harmless therefrom.
(c) Prices quoted are for Products only and do not include proprietary or patent rights of any kind nor shall they include product testing other than s standard tests nor packaging other than normal domestic commercial packaging, unless expressly agreed to in writing by Seller.
Upon shipment of any Products pursuant to the Order, Seller shall send Buyer an invoice therefore in duplicate or clearly identifying the Order number. Buyer has the responsibility to make the payment under the term as showed on the invoice. Past due balances may result in the change of Buyer’s payment term in the future. Partial shipments will be billed as made and payments therefore are subject to the above terms. Seller may cancel or delay delivery of Products in the event Customer fails to make prompt payment therefor. If in the judgment of Seller the financial condition of Customer at any time does not justify continuance of production or delivery on terms of payment above specified, Seller may require full or partial payment in advance. If Customer becomes insolvent or bankruptcy proceedings are instituted against Customer or Customer makes an assignment for the benefit of its creditors, any such event shall be deemed a material default hereunder, entitling Seller to cease performance under this order.
In the event of a default by Customer under the terms of this contract and the matter is placed in the hands of an attorney for collection, or to enforce the provisions herein, Customer agrees to pay reasonable attorney's fee together with costs in addition to the amount due under said contract.
Any delivery date specified in Seller's quotation is estimated and not guaranteed. Seller shall not be liable for any delays in delivery of shipment of products nor for any consequential or other damages suffered by the Customer by reason of such delay. Notwithstanding the inclusion in Customer's purchase order of the term "time is of the essence", or similar, delays in shipment shall not constitute a breach of contract on the part of Seller and shall not be cause for termination of contract.
Unless otherwise agreed to in writing by Seller all transportation shall be at the expense of Customer. Risk of loss or damage shall pass to Customer upon delivery of the Products to the transportation company at the FOB point. Confiscation or destruction of, or damage to Products shall not release, reduce or in any way affect the liability of Customer therefor. All products must be inspected upon receipt and claims should be filed with the transportation company when there is evidence of damage, either concealed or external. The Customer shall be responsible for filing and prosecuting any claims against the carrier. As used in the clauses appearing herein or attached hereto, "delivery" shall occur when Products are delivered at the FOB point, which shall be the point of manufacture or such other place as Seller may specify in writing.
Unless the direct result of a US Government termination for convenience, no order may be terminated by Customer except by mutual agreement in writing. Termination is subject to the following conditions:
(1) Pricing for all Products delivered under said order shall be subject to redetermination in accordance with final net quantity pricing as previously quoted by Seller, if available.
(2) Customer will pay for all undelivered Products which are completely manufactured and allocable to Customer at the time of Sellers receipt of notice of termination.
(3) Customer will pay all costs, direct and indirect, which have been incurred by Seller with regard to Products which have not been completely manufactured at the time of Seller's receipt of notice of termination, plus a pro rata portion of normal profit on the contract.
6. FORCE MAJEURE:
Seller shall not be liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, fire, accident, war, labor dispute, shortages, embargo, delayed delivery by suppliers, delay in transportation, acts of government whether foreseen or unforeseen. Should any of these events occur Seller may, at its option, cancel Customer's purchase order with respect to undelivered products or extend the delivery date for a period equal to the time lost due to the delay.
7. AUTHORITY TO EXPORT:
Buyer shall not export or re-export technical data or products supplied by seller in violation of applicable export regulations. Buyer who exports from the U.S. products purchased hereunder assumes all responsibility for obtaining any required export authorization and payment of applicable fees.
8. FEDERAL ACQUISITION REGULATIONS:
Seller acts as both a prime contractor and subcontractor to the federal government. Applicable Federal Acquisition Regulations (FAR) apply to such contracts. Specific FAR clauses may not be amended by the Customer without the written agreement of the Seller.
Except for the warranty of title, Seller warrants only that each Product to be delivered hereunder shall at the time of delivery and for 12 months thereafter conform to Sellers specification therefore, unless otherwise noted. Excluded from warranty are Products which (a) have been subject to improper handling, misuse or abuse, or (b) have been disassembled or repaired, or attempted to be, by other than Seller or its authorized agent.
Seller's obligation under this warranty with respect to losses is limited, at Seller's option, either to the replacement of or the refunding of the purchase price of any non conforming Product subject, however, to the following conditions and procedures:
(a) No Products shall be returned to Seller for warranty adjustment without prior authorization from Seller
(b) Upon receipt of the returned Products, Seller will examine such Products to determine to its own satisfaction that the alleged defect did not arise as a result of misuse, neglect, improper installation, repair, alteration or accident.
(c) Seller will notify Customer in the event Products are not subject to warranty adjustment and unless disposition instructions as to such products are received from Customer within thirty (30) days of such notification, the Products will be returned to Customer, freight collect.
(d) Warranty shall be limited only to Product provided by Seller and under no circumstances shall Seller assume liability, including for Seller negligence, for Customer-furnished supplies, materials or equipment. It shall be the sole responsibility of Customer to insure such supplies and material against all loss or damage while it is in the possession of the Seller.
This express warranty shall extend to Customer only and not to Customer's Customers and, except for the Warranty of Title, is in lieu of any and all other warranties, whether expressed or implied, including the implied warranties of fitness for a particular purpose and merchantability. There are no warranties that extend beyond the description on the face hereof. Statements made by any person, including representatives of Seller, which are inconsistent, or in conflict with the terms of this warranty shall not be binding upon Seller unless reduced to writing and approved by an officer of the Seller.
Seller and buyer agree that any information, whether it is technical, financial, general business or other, disclosed to the other shall remain the property of the discloser, unless delivered as part of the product purchased hereunder, remains the property of the discloser, and shall be treated as confidential information. No use or disclosure of such information shall be made without the express written consent of the discloser.
11. DAMAGES AND LIABILITY:
Seller's liability for damages shall not exceed the amount Seller actually receives for the product furnished, which is the subject of claim or dispute. In no event shall Seller be liable for any special or consequential damages incident to the replacement of any defective product, including but not limited to damage or loss to other equipment or property, loss of profits or revenue, cost of capital, cost of purchased or replacement parts including the cost of "cover", or claims of Customers of the Customer. Customer further waives any right extending beyond the warranty, to claim for negligence by Seller in design, material, workmanship, or installation.
Seller agrees to indemnify and save Customer, officers, directors, agents and representatives harmless from losses, expenses, demands and claims made against Customer, its officers, directors, agents and representatives because of any personal injuries, death or property damage to the extent it is caused by negligence or willful misconduct of seller, its employees, agents or representatives in connection with its performance of services under this agreement. In no event shall seller be liable for indirect, special, consequential or incidental damages, regardless of whether seller (a) has been informed of the possibility of such damages or (b) is negligent.
All disputes under any contract concerning Products not otherwise resolved between Seller and Customer shall be resolved in a court of competent jurisdiction for the location of Sellers place of business fulfilling the order or, at the Sellers sole discretion, in the Commonwealth of Massachusetts and in no other place, provided that, in Sellers sole discretion such action may be heard in some other place designated by Seller (if necessary to acquire jurisdiction over third persons), so that the dispute can be resolved. Customer agrees to appear in any such action and consent to the jurisdiction of such court upon written notice thereof. No action, regardless of form arising out of or in any way connected with, the Products furnished by Seller may be brought by Customer more than one (1) year after the cause of action has occurred.
All changes in Customer's purchase order which shall affect the cost or time of performance must be agreed to in writing by Seller, and an equitable adjustment shall be made in the purchase price or delivery schedule, as required. All "stop work" and "hold" requests shall be governed by this paragraph. Seller reserves the right to reject such changes and thus the original order quantities, shipment dates, and prices shall remain in effect. Seller reserves the right to invoice and be paid for progress payments if "stop work" orders are accepted.
15. Indemnification - Patent:
To the extent that Seller relies on information provided by the Customer regarding designs, drawings or specifications related to the product(s) in the Customers purchase order, Customer guarantees that no such item is in violation of any Patent law and that said product(s) will not infringe on any United States or Foreign patent rights. Customer agrees to hold Seller harmless for any expense, loss, cost, damage or liability which may be incurred on account of infringement or alleged infringement of patent rights with respect of such items, and to defend, at its own expense, any action or claim in which such infringement is alleged.
Any provision of this contract that contravenes the law of any state or country in which this contract is effective shall, to the extent of such contravention of law, be deemed separable and shall not affect any other provision or the validity of this contract.