These terms and conditions of sale (these “Terms”) are the only terms that govern the sale of the goods (“Goods”) and services (“Services”) by the company whose name first appears above (“Seller”) to the buyer (“Buyer”) identified on the accompanying [quotation/confirmation of sale/invoice] (the “SalesConfirmation”; collectively, with these Terms, the “Agreement”), provided that if a written contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. This Agreement is the entire agreement between the parties regarding the subject matter hereof, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, regarding such subject matter. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance by Seller of any of Buyer’s terms and conditions and does not serve to modify these Terms. Any additional or different terms or conditions proposed by Buyer are expressly objected to and will not be binding upon Seller unless specifically accepted in writing by Seller’s authorized representative. Any order received by Seller from Buyer for Goods or Services covered by this Agreement, or any statement of intent to purchase hereunder, or any direction to provide such Goods or Services or any assent to Seller’s providing such Goods or Services shall constitute assent to these Terms.
VALIDITY OF QUOTATION:
Unless otherwise specified in writing by Seller, any quotation by Seller shall expire 30 days from its date and may be modified or withdrawn by Seller prior to receipt of Buyer’s acceptance.
Buyer shall purchase the Goods and Services from Seller at the prices (the “Prices”) set forth in Seller’s published price list in force as of [[DATE]/the date [of Buyer’s purchase order/that Seller accepts Buyer’s purchase order]]. [If the Prices should be increased by Seller before delivery of the Goods to a carrier for shipment to Buyer, then these Terms shall be construed as if the increased prices [was/were] originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased prices.] [Buyer agrees to reimburse Seller for all reasonable travel and out-of-pocket expenses incurred by Seller in connection with the performance of the Services.]
Seller reserves the right to correct any obvious errors in specifications or prices. If a Buyer change in the Services specification results in a change in Price, all installments shall be adjusted accordingly, provided that if the change results in a decrease in Price, then the payments previously made shall be retained by Seller and applied to subsequent payments as they come due. In the event of a cancellation or termination of a purchase order, if the amount theretofore paid exceeds the cancellation charges, the excess shall be refunded to Buyer. If Buyer delays any deliveries and Seller agrees to a revised delivery schedule, due dates of payments shall be based on the revised delivery schedule. Payments already made shall be retained by Seller and applied to payments as they become due. If either party decides to suspend performance of this Agreement, that party shall give the other one-week advanced, written notice of the suspension date. Buyer will be responsible for any and all costs incurred prior to the suspension date.
Prices do not include present or future sales, use, excise, value added or similar taxes, duties, fees, assessments, or other charges imposed by any governmental authority applicable to the sale or use of the Goods or Services hereunder (“Taxes”). Buyer shall be responsible for all Taxes, or in lieu thereof, Buyer shall provide Seller with a tax exemption certificate acceptable to the applicable taxing authority. Any Taxes levied by any governmental authority other than of the U.S. in connection with this Agreement, whether levied against Buyer or Seller or its employees, Seller’s subcontractors or their employees, or otherwise, at any tier, shall be for Buyer’s account and shall be paid directly by Buyer to the governmental authority concerned. If Seller is required by law or otherwise to pay any such Taxes and/or fines, penalties, or assessments in the first instance or as a result of Buyer’s failure to pay such Taxes, the amount of any payments so made by Seller shall be reimbursed by Buyer to Seller upon submission of Seller’s invoices. All rights to drawback of customs duties for Goods (or material therein) belong to and shall remain in Seller. Buyer agrees to cooperate with Seller and to furnish such documents to Seller as may be necessary to obtain drawback.
TERMS OF PAYMENT:
For Buyers domiciled in the United States, except as otherwise provided in Seller’s quotation, Buyer shall pay Seller the agreed purchase price by wire transfer or check and in US dollars, without right of set-off. Seller may require payment at time of order, in advance of delivery, or for international shipments by irrevocable documentary letter of credit (sight draft) confirmed by any U.S. bank as a condition of acceptance of any order. For any orders involving a single price but multiple or partial deliveries, a pro-rata payment, in an amount reasonably determined by Seller, shall be due prior to or upon each delivery at Seller’s sole discretion. Terms of net 30 days from date of invoice may be offered by Seller in its sole discretion, subject to credit approval by Seller. Terms of payment are effective from the actual date of invoice. Payment is considered as having been made on the date payment is received by Seller.
For Buyers domiciled outside the United States, except as otherwise provided in Seller’s quotation, payment shall be made in U.S. Dollars upon presentation of shipping documents against one or more confirmed irrevocable letters of credit issued by a U.S. bank acceptable to Seller (“Letter of Credit”), which Letter of Credit shall (a) be established by Buyer, at Buyer’s expense (including confirmation charges), (b) be opened 30 days prior to the earliest scheduled shipment, (c) remain in effect until 90 days after the latest scheduled shipment and (d) expressly waive all other defenses to payment. The Letter of Credit shall provide for partial payments pro rata on partial deliveries and for the payment of any charges for storage, export shipment, price adjustments, cancellation or termination, and all other payments due from Buyer against Seller’s invoice and certification of the charges and grounds for such payment. Buyer will increase the amount and/or extend the validity period and make appropriate modifications to any Letter of Credit within 30 days of Seller’s notification that such is necessary to provide for payments to become due.
Buyer shall pay a service charge on delinquent accounts if Seller is not paid according to the terms set forth in the invoice or statement. Buyer shall pay on demand interest on all late payments at 1.5% per month or, if less, the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall pay on demand all expenses of collection, including costs and reasonable attorney’s fees. Buyer authorizes Seller to apply toward payment of any moneys that become due Seller hereunder any sums which may now or hereafter be owed to Buyer by Seller, or by any affiliate of Seller.
If in Seller’s judgment reasonable doubt exists as to Buyer’s financial responsibility, or if Buyer is past due in payment of any amount owing to Seller, Seller reserves the right, without liability and without prejudice to any other remedies under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), to suspend performance, decline to ship, or stop any Goods in transit, until Seller receives payment of all amounts, whether or not due, owing to Seller, or adequate assurance of such payment.
DELIVERY AND PERFORMANCE, TITLE TRANSFER, RISK OF LOSS:
Seller shall deliver the Goods to Buyer FCA Loaded Seller’s facility, place of manufacture or warehouse (Incoterms 2020)(the “DeliveryPoint”). Title passes to Buyer upon payment for the Goods. Except for those obligations which are consistent with Incoterms 2020 specifically stated above, Seller shall be without liability on any claim asserted by Buyer with respect to such delivery. Partial deliveries will be permitted. Each delivery will constitute a separate sale, and Buyer shall pay for the Goods delivered whether such delivery is in whole or partial fulfillment of Buyer’s purchase order.
Seller shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and any such dates shall be estimates only. With respect to the Services, Buyer shall (i) cooperate with Seller in all matters relating to the Services and provide such access to Buyer’s premises, and such office accommodation and other facilities, as may reasonably be requested by Seller, for the purposes of performing the Services; (ii) respond promptly to any request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as Seller may request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
Goods are warranted to be free from defects in material and workmanship which cause the Good to be unserviceable under proper and normal use and maintenance (a “Defect”) for a period of 12 months from the date of installation by Buyer, or 18 months from the date of delivery to Buyer, whichever is less (the “Goods Warranty Period”). Such warranty does not apply to any Goods or any repaired or replacement Goods which have:
suffered ordinary wear and tear, including that due to environment or operation;
been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper commissioning, improper storage, improper handling, improper maintenance, abnormal physical stress, abnormal environmental or operating conditions (including excessive operation at peak capability, frequent starting, type of fuel, detrimental air inlet conditions or erosion, corrosion, or material deposits from fluids), or use contrary to any instructions, guidelines or specifications provided by Seller;
been reconstructed, repaired, modified, or altered by any person other than Seller or its authorized contractors;
been used after the expiration of the specified time-life of such Good; or
which have been used for any purpose other than for industrial applications (Buyer acknowledges that the Goods and Services sold hereunder are intended for industrial applications only and shall not be used in connection with any aviation application).
Services are warranted to be performed in a competent manner for a period 12 months from the date of performance (the “Services Warranty Period”). Industry accepted suitability for service criteria will apply.
If at any time during the Goods Warranty Period Buyer asserts a Good covered by this warranty has a Defect, Buyer shall notify Seller within 30 days of the Defect becoming apparent to Buyer (but in no event after 30 days following the last day of the Goods Warranty Period) specifying the Defect and providing other appropriate details. Upon receipt of such notice, Seller will issue to Buyer a Return Material Authorization (“RMA”). Buyer may then return the Good, prepaid, to Seller for failure analysis. Seller will not accept any returned Goods without an RMA. If, upon completion of Seller’s analysis, the Good is determined to have a Defect, Seller will, at its sole option and expense, repair or replace the Good or credit or refund the purchase price thereof (provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods).
If at any time during the Services Warranty Period Buyer asserts a Service covered by this warranty was not performed in the manner described in Section 7.2, Buyer shall notify Seller within 30 days of the warranty breach becoming apparent to Buyer (but in no event after 30 days following the last day of the Services Warranty Period) specifying the breach and providing other appropriate details. If it is determined that the Services were improperly performed, Seller will, at its sole option and expense, reperform such Services (in which case Buyer shall cooperate as reasonably requested by Buyer with respect thereto) or credit or refund the price of such Services at the pro rata contract rate. Where a Services failure cannot be corrected by Seller’s reasonable efforts, the parties will negotiate an equitable agreement.
If Buyer asserts a warranty claim and as a result of the failure analysis it is established that Seller is not liable for the defects claimed, the costs of the investigation as well as any other costs and expenses connected with such claim shall be borne by Buyer and due and payable upon receipt of Seller’s invoice.
EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 7.1 AND SECTION 7.2, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
THE REMEDIES SET FORTH IN SECTION 7.3 AND 7.4 SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTIONS 7.1 AND 7.2, RESPECTIVELY.
LIMITATION OF LIABILITY:
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS OR SERVICES SOLD UNDER THIS AGREEMENT. The limitation of liability set forth in this Section 8.2 shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.
IF THIS AGREEMENT IS A SUBCONTRACT BUYER MUST OBTAIN A PROVISION FROM ITS PURCHASER PROVIDING SELLER AND ITS SUPPLIERS THE PROTECTION OF THIS SECTION 8.
COMPLIANCE WITH LAWS:
Any clause required to be included in a contract by any applicable law, or by any administrative regulations having the effect of law, is hereby incorporated herein. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
CANCELLATION AND TERMINATION:
A purchase order may be cancelled only by written agreement between Buyer and Seller, except as otherwise provided. Seller at its own discretion may charge a restocking fee of returned material of up to 30% to any cancelled order by Buyer.
In addition to any other applicable remedies, Seller may terminate this Agreement with immediate effect upon notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement [and such failure continues for [NUMBER] days after Buyer’s receipt of notice of nonpayment]; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, Sections 4, 7.6, 7.7, 8, 9, 10.3, 13, 14, 15, 16 and 17.
Buyer shall not assign this Agreement or any right or obligation hereunder without the express written consent of Seller and any purported assignment shall be void and ineffective. This Agreement shall be binding upon and inure to the benefit of Buyer’s and Seller’s successors and permitted assigns.
Seller shall not be deemed in breach of this Agreement or otherwise liable for delay or failure to perform in whole or part by reason of contingencies beyond Seller’s reasonable control, whether herein specifically enumerated or not, including, without limitation, any act or omission of Buyer or its agents, subcontractors, consultants, or employees, act of God, war, revolution, civil commotion, riot, acts of public enemies, blockade or embargo, delays of carriers, fire, explosion, casualty or accident, earthquake, pandemic, epidemic, flood, cyclone, tornado, hurricane, or windstorm, lack or failure of sources of supply of labor, raw materials, power or supplies, or excessive cost thereof, contingencies interfering with the customary or usual means of transportation of Goods, delays of vendors, or, where Goods covered hereby are not manufactured by Seller, lack or failure of sources of supply of said Goods, or by reason of any law, order, proclamation, regulation, ordinance, demand, requisition or requirement of any other act of any governmental authority, including court orders, judgments, or decrees, or any other cause whatsoever, whether similar or dissimilar to those above enumerated, beyond Seller’s reasonable control. Quantities so affected may be eliminated by Seller from this Agreement without liability.
All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Buyer agrees to protect Seller’s confidential information using industry standard administrative, technical, and physical safeguards to prevent unauthorized access or acquisition. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain through no fault or omission of Buyer; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
This Agreement is governed by the law of the state in which Seller is located as first set forth above (the “State”) without giving effect to any choice or conflict of law provision or rule (whether of the State or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State. If the provisions hereof vary from the Uniform Commercial Code of the State, the provisions hereof shall govern to the extent permitted by law.
SUBMISSION TO JURISDICTION:
Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America located in the State or the courts of the State in each case located in the county in which Seller is located as first set forth above (or, if no such court is located in such county, the nearest county in which such a court is located), and each party irrevocably submits to the exclusive jurisdiction of such courts.
AMENDMENT; WAIVER; SEVERABILITY:
These Terms may only be amended in a writing signed by an authorized representative of each party. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision hereof or invalidate or render unenforceable such provision in any other jurisdiction.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified mail (with return receipt requested, postage prepaid). A notice is effective only (a) upon receipt or refusal to accept delivery of the receiving party, and (b) if the party giving the notice has complied with the requirements of this Section.