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TERMS AND CONDITIONS
1. Acceptance: Buyer’s purchase order, acknowledged hereby as an offer of a contract, is accepted subject to the following terms and conditions of sale or such other terms and conditions as may be approved in writing by Seller.
2. Prices: All prices shown are f.o.b., factory at Waterbury, Connecticut, and unless otherwise stated do no include cartage, insurance charges, taxes, impost or any similar charges.
3. Deliveries: Seller shall not be liable for, nor be deemed in default by reason of any delay or failure in the performance of this contract in any particular when any such delay or failure is caused in whole or in part by any act of God or the public enemy, law, regulations, order of any governmental agency, riot, strike, or civil commotion of any other cause direct or indirect, beyond Seller’s control.
4. Special Tools, Patterns, Dies, Drawings, Etc: Except as otherwise expressly agreed in writing, all right and title to tooling, designs, patterns, drawings and materials shall be and remain in Seller. Any property of Buyer in the possession of Seller shall be held without liability to Seller except wherein the loss or damage is due to gross negligence of Seller.
5. Changes: No change shall be made in drawings and specifications relating to this contract without the written consent of Seller. Subject to the foregoing, Buyer, by written order, may make changes in drawings, specifications, delivery schedules, shipment or packing of articles. If any such change causes an increase or decrease in amounts due under this contract or in the time required for its performance, an equitable adjustment shall be made and the contract shall be modified accordingly. Any claim for adjustment hereunder may be asserted at any time prior to final settlement of the contract. It is understood that the prices stated herein are based upon straight-time labor costs; any request of Buyer necessitating over-time expenses shall be deemed a change under this provision.
6. WARRANTY: SELLER WARRANTS ITS PRODUCTS DELIVERED HEREUNDER TO CONFORM TO FINAL SPECIFICATIONS, DRAWINGS, OR OTHER DESCRIPTIONS APPROVED IN WRITING BY SELLER AND TO BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP, THIS WARRANTY SHALL RUN TO BUYER AND/OR ITS CUSTOMERS. THIS WARRANTY SHALL NOT APPLY TO ANY PRODUCT WHICH SHALL HAVE BEEN IMPROPERLY INSTALLED OR SUBJECTED TO MISUSE OR NEGLECT OR WHICH HAS BEEN REPAIRED OR ALTERED EXCEPT BY SELLER’S ACCREDITED REPRESENTATIVE, NOR TO ANY PRODUCT WHICH HAS BEEN SUBJECTED TO ACCIDENT, NO WARRANTY IS GIVEN WITH RESPECT TO ANY APPARATUS, INSTRUMENT, COMPONENT OR ACCESSORY NOT MANUFACTURED BY SELLER, OR AS TO ANY PRODUCT WHICH IS MANUFACTURED BY SELLER BUT WHICH IS INSTALLED OR OTHERWISE SUBJECTED TO USAGE WITH ANY APPARATUS, INSTRUMENT, COMPONENT OR ACCESSORY NOT MANUFACTURED BY SELLER AND NOT APPROVED IN WRITING BY SELLER AS APPROPRIATE FOR USAGE WITH SELLER’S PRODUCTS. EXCEPT AS EXPRESSLY STATED HEREINABOVE IN THIS PARAGRAPH AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE “TERMS AND CONDITIONS” OR OTHERWISE, SELLERS PRODUCTS ARE OFFERED AND SOLD WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS, OR OF ANY OTHER KIND WHATSOEVER PERTAINING THERETO.
7. LIMITATION OF LIABILITY: SELLER’S LIABILITY WITH RESPECT TO ANY CLAIM OF ANY KIND FOR LOSS OR DAMAGE ARISING OUT OF, RESULTING FROM OR CONCERNING ANY ASPECT OF THE OFFERING AND SALE, BY SELLER OF ITS PRODUCTS TO BUYER IS EXPRESSLY LIMITED TO WHICHEVER OF THE FOLLOWING MEASURES SELLER, IN IT’S SOLE DISCRETION, SHALL DETERMINE TO BE APPROPRIATE:
a. REPAIR OF DEFECTIVE OR NON-CONFORMING PRODUCTS
b. REPLACEMENT OF DEFECTIVE OR NON-CONFORMING PRODUCTS; OR
c. REFUND OF THE PURCHASE PRICE PAID IN RESPECT OF DEFECTIVE OR NON-CONFORMING PRODUCTS.
SELLER’S LIABILITY AS AFORESAID SHALL BE APPLICABLE ONLY AS REGARDS SUCH DEFECTIVE OR NON-CONFORMING PRODUCTS AS ARE RETURNED TO SELLER WITHIN TWELVE MONTHS OF THE DATE OF SHIPMENT.
THE REMEDIES PROVIDED HEREINABOVE IN THIS PARAGRAPH SHALL CONSTITUTE BUYER’S SOLE, AND EXCLUSIVE REMEDIES FOR LOSS OR DAMAGE ARISING OUT OF, RESULTING FROM OR CONCERNING ANY ASPECT OF THE OFFERING AND SALE BY SELLER OF ITS PRODUCTS TO BUYER; AND SELLER SHALL NOT UNDER ANY CIRCUMSTANCES (WHETHER AS A RESULT OF BREACH OF CONTRACT, BREACH OF WARRANTY, TORT OR OTHERWISE) BE LIABLE TO BUYER IN THAT REGARD FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR OTHER DAMAGES OF ANY KIND OR MANNER, INCLUDING, WITHOUT BEING LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE OF OR DAMAGE TO ASSOCIATED PRODUCTS OR EQUIPMENT, COSTS OF CAPITAL OR COSTS OF SUBSTITUTE PRODUCTS, FACILITIES OR SERVICES.
8. Reproduction Rights: Drawings, specifications, reports, photographs and other date relating to this contract and all proprietary right and interest therein and the subject matter thereof shall remain the property of Seller. Buyer agrees that it will not use the Seller’s drawings, specifications and other materials and information above mentioned for the production or procurement of articles covered by this contract or any similar article from any other source, or reproduce the same or otherwise appropriate them without the written authorization of Seller.
9. Confidential: Buyer agrees and warrants that it will not disclose or make available to any third party any drawings, data, information, or any other details pertaining to this contract without first obtaining the written consent of Seller.
10. Patent Protection:
a. Except in so far as this order calls for articles or materials pursuant to Buyer’s drawings or specifications Seller agrees to defend any suit or proceeding against Buyer based upon a claim that any article or part thereof manufactured hereunder, by reason of its manufacture, sale or use, infringes any United States Patent, which has issued at date of contract, and agrees to pay the amount of any judgment against Buyer resulting therefrom, together with all costs and expenses incident thereto, provided Seller is notified of the threat or commencement of any such suit or proceeding promptly and is given an opportunity with the cooperation of Buyer, to conduct and control the defense or settlement thereof. No responsibility is assumed for actual or alleged infringement of any foreign patent or otherwise than as herein expressly stated. Buyer agrees to payto Seller all costs and expenses incurred by Seller in Seller’s defense of, and further agrees to pay the amount of any judgment against Seller resulting from any suit or proceeding against Seller based upon a claim of infringement, or contributory infringement, arising out of Buyer’s combining any article or articles supplied hereunder with any article or devise not manufactured or supplied by Seller or from the sale or use of any such combination by Buyer.
b. Special Exception: If the purchase order or quotation referred to on the opposite side hereof covers printed circuit motors the following applies: Other parties have exclusive licenses under United States Patent 2,847,589, and Re.25, 305, and other related United States and foreign patents with respect to printed circuit motors, covered by such patents, used in timing devices and electric shavers. The sale by Seller of motors covered by such patents does not grant Buyer any license, express or implied, to use such motors in timing devices or electric shavers and not withstanding the provisions of Paragraph 10 (a) hereof, Seller shall not be responsible for, nor incur any liability with respect to any such unauthorized use.
11. Taxes: The amount of all federal, state or local taxes applicable to the sale, use, delivery or transportation of the articles sold hereunder and all duties, imposts, tariffs and other similar levies shall be added to the contract price and paid by Buyer except where Buyer shall furnish appropriate certification of exemption therefrom.
12. Terms of Payment: Buyer agrees to pay Seller for all products delivered hereunder within thirty (30) days from the date of shipment. Seller assumes no responsibility for delay, breakage or damage after delivery in good condition to the carrier.
13. Government Contracts: If a government Prime Contract number is shown on the Buyer’s purchase order, Seller agrees to comply with such terms and conditions of such Prime Contract as may apply to Seller relating to Termination, Secrecy, Espionage, Employment of Aliens, Non-Discrimination, Buy American Act, Walsh-Healy Act, Notice of Labor Disputes, Vinson Act, Fair Labor Standards Act and Renegotiation but none other. Buyer agrees, upon request to notify Seller of the applicable terms and conditions of such Prime Contract in each instance.
14. Bankruptcy or Insolvency: In the event of bankruptcy or insolvency of Buyer (voluntary or involuntary and however evidenced), or the filing or any petition or commencement of any proceeding by any party which seeks or could result in such bankruptcy or insolvency, or the taking by Buyer of any action with a view toward the occurrence or facilitation of any of the foregoing, Seller may at any time there after immediately terminate this contract without any further obligation hereunder on Seller’s part whatsoever but with Buyer remaining liable to pay for all products delivered hereunder prior to such termination.
15. Assignment: Neither this contract nor any rights of Buyer hereunder may be assigned by with Seller’s prior written consent.
16. Modifications: Neither all nor any portion of these “TERMS AND CONDITIONS” may be or shall be deemed to be amended, revoked, or in any other manner modified except pursuant to the terms of a writing executed by a duly authorized officer or representative of Seller.
17. Governing Law: These “TERMS AND CONDITIONS” as well as any contracts, agreements or other documents arising in connection therewith or to which they may apply, shall be governed by and construed in accordance with the laws of the State of Connecticut applicable to contracts made and to be wholly performed within said State.
18. Cancellation Charges: If this contract shall for any reason whatsoever be terminated, not performed or otherwise breached by Buyer prior to a complete payment by Buyer for all products ordered hereunder, Seller shall thereupon become immediately entitled to exercise any and all remedies in respect of Buyers termination, non-performance or other breach as set forth in the Uniform Commercial Code as then in effect in the State of Connecticut. For completed units, the Seller is entitled to full per unit contract price. Buyer and Seller mutually acknowledge that certain damages to Seller which would result from Buyers termination, non-performance or other breach of this contract prior to complete payment by Buyer for all products ordered hereunder would not be readily susceptible to monetary valuation. Accordingly, Buyer and Seller hereby agree that with respect to products ordered, the manufacture of which is not complete, if pursuant to the applicable Uniform Commercial Code provisions, the Seller would be entitled to be compensated for its profit (including its reasonable overhead) for the purposes of calculating cancellation charges or damages for such breach, the Seller’s profits (including its reasonable overhead) shall be 50% of the per unit price for all units not completed and for which the full contract price has not been paid. This shall be in addition to all direct costs, incurred by Seller in performance of the contract as determined pursuant to the Uniform Commercial Code.
19. Collection Expenses: Buyer shall be liable for all costs, expenses, collection agency fees and reasonable attorney’s fees incurred by Seller with regard to collection of any amounts owed by Buyer under this contract.
20. No goods are to be returned to Haydon Kerk Motion Solutions, Inc., without a return material authorization number. This number can be obtained by calling Haydon Kerk Motion Solutions, Inc., Sales Department. Any goods returned to Haydon Kerk Motion Solutions, Inc., without a return material authorization number will not be accepted at Haydon Kerk Motion Solutions, Inc., and will be returned to you collect.
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