Standard Terms and Conditions of Sale
- CONTROLLING TERMS/ACCEPTANCE
Buyer agrees that the terms and conditions set forth herein shall be applicable to all sales of Seller's goods and services and shall supersede all printed terms and conditions set forth in purchase orders or other printed or electronic forms used by the Buyer. Seller shall not be deemed to have waived these terms and conditions of sale if it fails to object to terms and conditions appearing in Buyer's purchase order or other forms, and Buyer's execution of this sales order shall constitute the Buyer's acceptance of these terms and conditions of sale as the only terms applicable to the purchase of such goods. The sales order and these Terms and Conditions (together referred to as the "Order"), constitute the entire agreement between the parties, and no modification of this Order shall be binding unless in writing signed by both parties hereto.
(a) Customer's Order shall be completed at prices stated in this Order. Prices are subject to adjustment only in accordance with provisions contained elsewhere herein, if any, except that Seller may at any time before delivery, with written notice to the Buyer, adjust the price of goods subject to this Order to reflect any increase in the cost of labor, raw materials, or any other costs of producing the goods; (b) In addition to the price of the goods or related services, any and all taxes (not including any income or similar taxes) that may be imposed by any taxing authority, arising from the sale, delivery, or use of the goods and for which the Seller may be held responsible for collection or payment either on its own behalf or on behalf of the Buyer, shall be paid by the Buyer to Seller.
Seller may, at its option, deliver part quantities of the goods that are the subject of this Order and invoice for partial shipment, in which case each shipment shall constitute a separate installment and independent transaction. If Buyer fails to accept delivery as and when tendered, Seller may, at Buyer's sole expense, store the goods at its own premises or at a separate site suitable to the Seller, in its sole discretion.
If upon receipt and inspection of goods by Buyer at destination, such goods shall appear not to be in conformance with the Order, the Buyer shall, within ten (10) days after the receipt thereof, notify the Seller of such condition and afford Seller a reasonable opportunity to inspect the goods and make any appropriate adjustment or replacement. The remedies afforded Buyer under paragraph 7 hereof entitled "Warranty" shall be exclusive for defective goods but shall be barred by reason of Buyer's failure to discover the defective goods within the ten (10) day inspection period.
Unless otherwise provided, payment for goods shall be fully due in U.S. dollars 30 days after invoice date. A service charge equal to the lesser of 1.5% per month or the maximum percentage rate permitted by applicable law will be charged on all accounts thirty (30) days past due. The Seller may, at its sole discretion, treat any failure by the Buyer to make payment when due as a breach of this Order and pursue any and all rights and remedies it may have against the Buyer pursuant to this Order, at law, or otherwise.
The goods to be delivered hereunder shall be packed and packaged in accordance with sound commercial practice for domestic shipment. Unless otherwise agreed in writing, export or other special packaging will be at additional charge to the Buyer.
(a) Seller warrants to Buyer that at the time of delivery the goods will be free from defects in material and workmanship and will conform to the specifications of the order as accepted. Seller's liability and Buyer's remedy under this warranty are limited to the repair or replacement at Seller's election of goods or parts thereof returned to Seller and which are shown to Seller's reasonable satisfaction to have been defective. However, Seller may elect, at its sole discretion, to refund the purchase price of defective goods to Buyer in lieu of repair or replacement.
(b) Goods may be returned to Seller (freight prepaid by Buyer) only after Seller's receipt of written notice of the defect and Seller's issuance of an RMA to Buyer. Replacement goods will not be cross-shipped without a new sales order, but will be shipped only upon issuance of an RMA and receipt by Seller of the returned goods for inspection. All warranty claims must be asserted and all goods returned within one year after the shipment date.
(c) Transportation charges for the return of defective goods to Seller and their reshipment to Buyer and the risk of loss thereof will be borne by the Buyer. With each return Buyer shall include a detailed description of the claimed defect.
(d) THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE GIVEN AND ACCEPTED IN LIEU OF (i) ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (ii) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN CONTRACT OR TORT, WHETHER OR NOT ARISING FROM SELLER'S NEGLIGENCE. THE REMEDIES OF THE BUYER SHALL BE LIMITED TO THOSE PROVIDED HEREIN TO THE EXCLUSION OF ANY AND ALL OTHER REMEDIES, INCLUDING WITHOUT LIMITATION, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES. NO AGREEMENT VARYING OR EXTENDING THE FOREGOING WARRANTIES, REMEDIES OR THIS LIMITATION WILL BE BINDING UPON SELLER UNLESS IN WRITING AND SIGNED BY A DULY AUTHORIZED OFFICER OF THE SELLER.
- BUYER'S FINANCIAL STATUS
If before completion of performance by Seller, the Buyer becomes bankrupt, insolvent, or makes an assignment for the benefit of creditors, the Seller may at its option give to Buyer a written notice of termination and Seller shall thereupon be relieved of any further obligations to Buyer under this or any other Order. In addition to payment for goods or services delivered, Buyer shall reimburse Seller for its termination costs and a reasonable allowance for profit for the work terminated.
- SELLER'S REMEDIES
Upon failure of the Buyer to comply with any of the terms and conditions of this Order, Seller shall be entitled to any remedy permitted herein, by applicable law, or otherwise, including but not limited to: (i) rescission of this Order in whole or in part and refusal to make any further deliveries or installments, without any liability to the Buyer; (ii) cancellation or rescission of any other orders with Buyer, whether or not Buyer has provided Seller with adequate assurance of its performance under such orders; and (iii) damages for breach of this Order and any and all costs of collection relative thereto, including without limitation reasonable attorney's fees.
- SELLER'S PERFORMANCE
All dates or time periods stated herein that relate to the time within which Seller must commence or complete work that is the subject of this Order are estimates only, and the Seller shall not be liable to the Buyer for any loss or damage of any kind (including direct, indirect or consequential loss) sustained by the Buyer or any third party as a result of Seller's failure to comply with such date or period of commencement or completion.
- EXCUSABLE DELAYS
Buyer acknowledges that the goods called for hereunder are to be manufactured by or for Seller to fill the Order and that the specified delivery dates are based on the assumption that there will be no delays due to causes beyond the reasonable control of Seller. Seller shall not be liable for delay or non-delivery due to delays of suppliers, acts of God or the public enemy, compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it proves to be invalid, fires, riots, labor disputes, unusually severe weather or any other cause beyond the reasonable control of Seller. To the extent that such causes actually retard deliveries on the part of the Seller, the time for performance shall be extended for as many days beyond the date thereof as are required to obtain removal of such causes. This provision shall not, however, relieve Seller from using commercially reasonable efforts to avoid or remove such causes and continue performance, subject to any extension for the time of performance permitted under this paragraph, whenever such causes are removed.
- LIMITATION ON LIABILITY
THE PRICE ALLOCABLE TO ANY GOODS OR SERVICES ALLEGED TO BE THE CAUSE OF ANY LOSS OR DAMAGE TO THE BUYER SHALL BE THE CEILING LIMIT ON SELLER'S LIABILITY, WHETHER FOUNDED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), ARISING OUT OF, OR RESULTING FROM (I) THIS ORDER OR THE PERFORMANCE OR BREACH THEREOF, (II) THE DESIGN, MANUFACTURE, DELIVERY, SALE, REPAIR, REPLACEMENT, OR THE USE OF ANY SUCH GOODS OR (III) THE FURNISHING OF ANY SUCH SERVICE. IN NO EVENT SHALL SELLER HAVE ANY LIABILITY FOR ANY PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES.
Buyer shall indemnify, defend and hold Seller harmless from any and all claims, causes of action, liabilities, expenses, and costs (including without limitation reasonable attorney's fees and all other costs of defense) for: (i) property loss or damage and personal injury or death to third parties attributable to Buyer's use of Seller's goods, except to the extent caused by Seller's intentional misconduct or gross negligence; (ii) Buyer's breach of any provision of this Order; and (iii) any claim, suit or action, including but not limited to patent infringement actions, based on a design or specification furnished by Buyer or on the performance of a process not recommended in writing by Seller.
- SELLER'S PROPRIETARY INFORMATION
Any information or data which the Seller may disclose to the Buyer with respect to the design or manufacture of the goods, and which is identified in any way by Seller as proprietary, including rights of reproduction and disclosure, shall remain the Seller's property, and shall not be reproduced or disclosed to others by the Buyer without the express written consent of the Seller.
This Order may be cancelled by Buyer only upon ten (10) days' written notice to Seller and upon payment of reasonable charges based on expenses already incurred by Seller and upon compensation for any losses (including loss of profit), damages or other costs Seller may suffer as a result of such cancellation. Seller may cancel this Order in whole or in part at any time prior to completion for any reason.
- COMPLIANCE WITH LAWS
Buyer shall comply with all State, Federal and local laws, rules and regulations applicable to this Order and Buyer's purchase, use and/or resale of the goods. Buyer understands that certain goods may be subject to export controls under the laws, regulations and/or directives of the United States and various other countries. Buyer must comply with such laws, regulations and directives prior to any export, re-export or transfer of the goods to any country.
- CHOICE OF LAW/FORUM
This contract shall be interpreted in accordance with and governed by the laws of the State of Connecticut. If either Buyer or Seller brings a lawsuit or any other action arising out of this Order against the other party, such party must file its lawsuit or other action in a state or federal court located in Hartford, Connecticut. Buyer and Seller hereby expressly submit to the exclusive jurisdiction of and consent to venue in the state or federal courts located in Hartford, Connecticut.
Waiver by either party of a breach of this Order shall not constitute a waiver of any other breach of the same or any other term. Furthermore, in the event that any part or provision of this Order shall be declared to be illegal or unenforceable, it shall not affect the validity of the remaining provisions and all other provisions shall continue in full force and effect.
Any assignment by Buyer of this Order, in whole or in part, without Seller's prior written consent, shall be null and void, and shall constitute a material breach of this Order.