STANDARD TERMS AND CONDITIONS OF SALE
UNLESS OTHERWISE AGREED TO IN WRITING, THE FOLLOWING APPLY TO ALL SALES
1. WARRANTY. SELLER warrants that any product of its manufacture, which upon examination is found by a SELLER’S representative to be defective in either workmanship or material under normal use and service, will be, at SELLER’S option, repaired or replaced free of charge including lowest transportation charges but not cost of installation or removal, or have the purchase price refunded, provided that SELLER receives written claim specifying the defect within ninety (90) days from date of distributor sale or one (1) year from date of factory shipment, whichever occurs first. In no event shall SELLER be liable for any claims, whether arising from breach of contract or warranty or claims of negligence or negligent manufacture, in excess of the purchase price. ALL OTHER WARRANTIES EXPRESSED OR IMPLIED INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR USE ARE HEREBY DISCLAIMED. The foregoing expresses all of SELLER’S obligations and liabilities with respect to the quality of items furnished by it and it shall under no circumstances be liable for consequential, collateral or special losses or damages.
2. ORDER ACCEPTED BY SELLER.
a.All orders received from BUYER are subject to acceptance by SELLER, unless quotation specifies that it is a bid in response to an invitation for bids in which event the order or award shall constitute acceptance of the bid in accordance with the bid terms.
b.Terms and conditions on the BUYER’S order form, at variance with terms and conditions stated herein, are binding upon SELLER only if specifically accepted by SELLER in writing.
c. Orders accepted by SELLER cannot be cancelled by BUYER except with SELLER’S written consent and upon terms that will indemnify SELLER against loss.
3. PRODUCT SUITABILITY AND LENGTH OF SERVICE. Determination of the suitability of the goods for the uses and applications contemplated by Buyer and other shall be the sole responsibility of the Buyer or user. No guaranty is given with respect to length of service on any particular application. Suggestions or recommendations made by Seller in its product literature concerning use or applications of the goods are believed to be reliable, but Seller makes no warranty or guaranty of the results to be obtained since the conditions of the use and application of Buyer and others are beyond Seller’s control.
4. QUANTITY VARIANCES. The amount of goods delivered may be within 10% more or less of the quantity specified (20% more or less on made-to-order products) and shall be charged at the unit price as ordered.
5. SAMPLES. In the event samples are furnished BUYER, SELLER will not assume any liability in connection with the furnishing or use thereof and there will be no agreement of warranty collateral to, or affecting, the furnishing of such samples.
6. PRICE AND PAYMENT.
a. Unless otherwise stated, legal delivery and prices are F.O.B. SELLER’S plant and prices do not include transportation charges.
b. Taxes Not Included in Price: Except where otherwise prohibited by law, all sales, excise, use or similar taxes or charges by the federal, any foreign, or any state or local government, which SELLER may be required to pay or collect, shall be in addition to price stated and shall be paid by BUYER, unless valid exemption certificate is furnished therefor.
c. Payment: All accounts are payable within terms stated on SELLER’S invoice. SELLER may demand payment in advance of shipment if, in SELLER’S opinion, the credit or financial condition of BUYER is, or is about to become impaired.
d. Payments Where Shipments are Delayed: Where BUYER requests delay in shipment, SELLER shall have the option of billing for goods when ready for shipment. If material is not ordered out within sixty (60) days after goods are ready, SELLER will have the option of billing storage charges.
7. TITLE AND RISK OF LOSS. Title to and risk of loss in the goods shall pass to Buyer upon Seller’s delivery to the carrier at the shipping point, notwithstanding the terms of shipment specified herein.
a. Shipping Dates: Shipping dates are approximate only and subject to change.
b. Unforeseen Delays: SELLER shall not be liable in damages or otherwise for delays or failure in performance when caused by circumstances, of every nature and description and however arising, beyond SELLER’S reasonable control. In the event that SELLER is unable due to any such occurrence or otherwise, to fulfill its total commitments to all customers, BUYER agrees to accept, as full and complete performance by SELLER, deliveries in accordance with such plan or pro-ration as SELLER may adopt.
c. Packaging: SELLER will provide commercial packaging, adequate under normal conditions, to protect the goods in shipment and identify the contents. Should BUYER request any special packaging, it will be done at BUYER’S expense.
d. Routing: All goods will be shipped via the cheapest or most expeditious means of transportation under the circumstances, unless BUYER indicates otherwise. If BUYER provides no routing instructions, SELLER shall be the sole judge of the best method of routing shipment.
e. Claims: Claims for loss or damage in transit must be entered and prosecuted by the BUYER.
9. INSPECTION. SELLER will inspect all goods prior to shipment and such inspection will be adequate to meet SELLER’S standards for dimensional and visual characteristics.
10. REJECTIONS AND RETURNS.
a. Notification to SELLER: BUYER will be deemed to have inspected and accepted any shipment under this contract if, within thirty (30) days after BUYER’S receipt of goods, BUYER has not notified SELLER in writing that such goods are rejected and the grounds therefor.
b. Return of Goods: No goods may be returned by BUYER for any reason without SELLER’S prior written approval.
11. SPECIAL DAMAGES. Neither BUYER nor SELLER shall make any claims for special or consequential damages.
12. GENERAL PROVISIONS.
a. Modification of Contract: It is agreed that there is no other contract in force between BUYER and SELLER and no alterations shall be binding unless agreed to in writing by SELLER. Should SELLER by any words, acts or writing, waive or be deemed to have waived any of the provisions of this agreement, or should SELLER fail to insist upon performance by BUYER of one or more of the terms herein, such action or failure on SELLER’S part will in no way be deemed to imply or constitute a waiver of any other terms contained in this agreement.
b. Compliance with Laws: SELLER certifies compliance with all relevant Federal, State and local laws including Paragraphs 6, 7 and 12 of the Fair Labor Standards Act as amended and any regulations and orders issued under Paragraph 14 thereof.
c. Rights in Data: The acceptance of this order by SELLER does not convey any “Rights in Data” as described in ASPP9-202 or 9-203 or any amendments thereof. If “Rights in Data” are desired, they must be the subject of separate negotiations.
13. EXPORT CONTROLS. The commodities, materials and related information covered by this invoice are subject to the export control laws of the U.S. The purchaser/distributor shall not knowingly sell, export, transfer, or dispose of, whether directly or indirectly, the commodities, materials, and related information covered by this invoice to countries, destinations, or end-users that are prohibited under U.S. law. Further, the purchaser/distributor shall not commit to any order placed by or for any firm which is disallowed under U.S. law. Any orders originating from, or which will result in delivery to, prohibited individuals or entities located within or controlled by any country subject to restrictions under U.S. export control laws, may not be filled without the prior authorization and approval of the U.S. government.
14. DISCREPANCIES. If Distributor (BUYER) believes there are or may be any errors, omissions or inconsistencies in the Sales Order Acknowledgement, Invoice, or other documents related or supplemental to its order, BUYER must submit a claim, with satisfactory evidence in support thereof, within six (6) months of the date of sale
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