An order constitutes a contract between Seller and Buyer when accepted in writing by seller at its home office. As shown on the face hereof. A contract resulting from the acceptance of an order may be canceled or altered by the Buyer only if agreed to in writing by seller. Any of the terms or provisions of the Buyer’s order which are in any way inconsistent with or in addition to the terms and conditions contained herein shall not be binding on either party unless expressly accepted in writing by Seller’s authorized representatives.
2. UNIT PRICING
The Seller certifies that the prices contained herein are as favorable to the Buyer as those extended to any other customer for substantially similar items and quantities. Federal, State, Municipal or other Government tax now or hereinafter imposed upon the production, storage, sale, transportation or use of the products described applied directly to the sale hereunder shall be paid by the Buyer excluding income taxes imposed upon Seller, or in lieu thereof, the Buyer shall provide a Tax Exemption Certificate acceptable to the taxing authorities.
All shipments FOB origin (Seller’s factory) with freight and insurance charges Buyer’s responsibility.
Product acceptance shall be made by first article approval. The first article and its specification shall be approved in writing by the Buyer prior to shipment by the Seller of production units. In absence of Buyer’s Specification, Sellers Specification shall prevail. Specifications and all drawings must contain latest revisions.
(a) The Seller will make every effort to complete shipment as indicated, but assumes no responsibility or liability for loss or damage by reason of delay or inability to ship, including delays caused by acts of God; fires, floods, wars, embargoes, labor disputes, acts of sabotage, riots, accidents, delays of carriers, subcontractors, or suppliers, voluntary or mandatory compliance with any government act, regulation or request, shortage of labor, materials, or manufacturing facilities, energy shortages, or any other cause or causes beyond the Seller’s reasonable control.
(b) Partial deliveries shall be accepted and paid for at contract prices. If any part of the materials is not delivered by the Seller or is not in accordance with the order, the remainder of the material and the buyer’s obligation thereunder shall not be affected. The Seller may, at its option, replace or repair any or all returned material within a reasonable time after it is finally determined that the returned goods are not in accordance with the contract, and in such event the Seller shall not be liable for any damages arising from the defective delivery or delay caused thereby.
(c) Any changes in delivery, rescheduling or cancellation of releases may be made on a no-charge basis with written notice no less that one-hundred twenty (120) days prior to the scheduled date of shipment. Buyer will provide a one-hundred-twenty (120) day rolling forecast with releases for ninety (90) days of shipments. Unit price may be affected by schedule changes.
6. ENGINEERING CHANGES
After approval of the initial units, Seller shall make a good faith effort to inform Buyer advance notification of tiny changes which affect form, fit, function, or interchangeability. It is understood that the Seller has complete and total rights to control its design, material usage, and manufacturing processes to the extent required to maintain production scheduling and to stay’ within the specified performance levels.
Seller warrants products of its manufacture to be free from defect in design (to the extent designed by Seller), workmanship and material under normal use and service for a period of two (2) years after the date of shipment. Seller agrees to repair or replace at its authorized repair center, without charge, all defective parts in displays which are returned for inspection to said center within the applicable warranty period; provided such inspection discloses that the defects are as specified above, and provided further the equipment has not been altered or repaired other than with authorization from Seller and by its approved procedures, and not been subjected to misuse, improper maintenance, negligence or accident, part thereof altered, defaced or removed.
THE TERMS OF THIS WARRANTY CONSTITUTES THE BUYER’S SOLE AND EXCLUSIVE REMEDY AGAINST SELLER. THERE IS NOT IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCE SHALL SELLER BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR IN ANY AMOUNT BEYOND THE REPLACEMENT OF THE ALLEGEDLY DEFECTIVE PART, REGARDLESS OF THE THEORY OF RECOVERY.
The warranty set forth herein may not be extended, altered or modified expect by written amendment to this Agreement.
For in-warranty repairs, it will be the Buyer’s responsibility to obtain an RMA (Returned Material Authorization) number prior to the return of any product to the Seller. The Seller reserves the right to refuse any returned merchandise without an RMA. Seller agrees to pay both incoming and outgoing shipment expense using the most cost-effective method. If the Buyer requests special shipping methods, such as priority air freight. The Buyer will assume the charges over and above the normal most cost effective method. In the case of a no fault found (NFF) Buyer will be responsible for all freight and inspection charges. The warranty start date for in-warranty repairs remains the original shipment date FOB the Sellers factory.
8. NON-WARRANTY REPAIR SERVICE
The Seller maintains a repair center at its factory that can be used by anyone owning, or having in their possession, a Seller manufactured product. The current repair rate schedule can be obtained for each product upon request. It is the Buyer’s responsibility to obtain an RMA (Returned Material Authorization) number prior to the return of any product to the Seller. The Seller reserves the right to refuse any returned merchandise without an RMA. It is the Buyer’s responsibility to issue a purchase order for the repair or replacement of the returned product and to state on the purchase order a maximum or N.T.E. (Not To Exceed) amount of repair cost (each returned product is subject to an inspection charge). In the event the repair cost will exceed the amount in the purchase order, the Seller will advise the Buyer in writing the actual repair cost. If authorization to repair in writing is not received within thirty (30) days following the advisement of repair cost, the defective product(s) will be returned to the Buyers place of business at the Buyers expense. The most cost-effective method of shipping the repaired product(s) will be utilized by the Seller, unless the Buyer specifies the shipment method and/or carrier.
The Seller will warranty only those components replaced in the Sellers service center for ninety (90) days from date of shipment.
9. PROPRIETARY INFORMATION
All proprietary information which is specifically designated as such, disclosed by either party to the other in connection with this order, shall be used solely for installation, operation, maintenance and support of equipment furnished under this order only, and shall be protected by the recipient from disclosure to others with the same degree of care as that which is accorded to its own proprietary information. Information will not be subject to this provision if it is or becomes a matter of public knowledge without the fault of the recipient parties.
10. PATENT PROTECTION
Seller shall undertake, at its own expense, the defense of any suit or proceeding brought against Buyer in so far as such suit or proceeding is based upon a claim relating directly to Sellers design and furnished hereunder constitutes an infringement of any patent of the United States, on condition that Buyer promptly notifies Seller in writing of suits and cooperates by giving Seller any requested authorization, information and assistance for the defense of the same. The foregoing shall not apply in instances in which normally non-infringing equipment of Seller is rendered infringing by Buyer’s design alteration, or combination with other equipment or use of said equipment. The sole obligation of Seller shall be full compliance with this clause. Seller shall not be responsible for any incidental damages of Buyer.
On all equipment for destination inside the United States terms of payment are net 30 days of invoice date subject to approval of Sellers credit department. On all equipment for destination outside the United States, terms of payment are net cash at order or by an irrevocable letter of credit.
All payments shall be in legal currency of the United States. Past due balances are subject to late payment charges at the maximum rate allowed by law, but not to exceed 1.5% monthly or 18% yearly. The parties agree that this charge does not imply the Seller will forbear collection in any way nor does it imply an extension of credit. This charge is designed to encourage prompt payment and to cover costs to the Seller resulting from the Buyer’s failure to make timely payments.
An irrevocable Letter of Credit (L. C.) must meet the following conditions:
a. The L.C. must be issued by a Federal Bank acceptable to Seller.
b. The L.C. document must be received prior to the issuance of any purchase commitments for materials.
c. The L.C. must be for the full amount of the order plus L.C. handling fees.
d. The L.C. must be payable upon presentation and demand for payment to issuer and must be in U. S. dollars.
e. Authorize shipping as FOB origin (Seller’s factory) with shipment from any USA port. All freight, handling, packaging, insurance, and custom’s fees to be paid by Buyer. Partial and transshipments are allowed.
f. The L.C. should be valid for at least 60 days after the estimated last shipping date.
Buyer may terminate their order for any reason by written notice of not less then One Hundred Twenty (120) days from scheduled ship date. Buyer may cancel, in whole or any part thereof, their order through nonperformance by Seller or delivery or poor quality and workmanship only after Seller has had a period of ninety (90) days after written notification to rectify said problems. In event of termination of equipment involving Buyer required special components or configuration, the Buyer agrees to pay the Seller, in addition to the unit price adjusted for all completed articles, unique raw materials and all costs reasonably incurred in the performance of the order which are properly allocated in accordance with recognized commercial accounting practices to the terminated portion of Buyers order. The rates used to compute any claim under this paragraph shall be equivalent to those used to establish the original purchase price.
Seller may terminate remainder of order as a result of; (1.) Failure of Buyer to accept or pay for products manufactured or delivered. (2.) Breach by Buyer of any terms of this agreement.
13. APPLICABLE REGULATIONS
Seller certifies that it complies with the requirements of Fair Labor Standards Act of 1938 as amended, the Walsh-Healy Public Contract Act and is an equal opportunity employer. If Buyers order is placed as a subcontract under the United States Government prime contract, only those clauses of the Federal Acquisition Regulation (FAR) that are required by that nothing contained or incorporated herein shall be construed as a representation that Seller offers its standard products on a cost reimbursement basis or that Seller makes any representation regarding the cost of standard products.
No delay or failure of either party in exercising any right hereunder and no partial or single exercise hereof, shall be deemed to constitute the waiver of such right or any other rights hereunder.
If any provision of buyers order shall become inoperative or unenforceable as applied in any particular case or becomes in conflict with any other provisions hereof, such circumstances shall not have the effect of rendering the provision in question invalid, inoperative or unenforceable in any other case or circumstances. The invalidity of any one or more phrase, sentences, clauses or sections contained in this Agreement shall not effect the remaining portion of this Agreement or any part thereof.
5. EVALUATION MONITORS
The Seller will provide a monitor for evaluation purposes to the Buyer subject to the following stipulations: (1) The Buyer will issue a purchase order for the monitor at the current single piece price, (2) The Buyer will be responsible for all applicable shipping, customs and import taxes, both to and from Sellers shipping point, (3) The Buyer will accept the monitor(s) on standard chassis as advertised in Sellers brochures, (4) The Buyer will have thirty (30) days from date of shipment for their evaluation period. If the Buyer needs more evaluation time, then an extension of an additional thirty (30) days can be given upon receipt of Buyers formal request for that extension. . Request for extension beyond the sixty (60) days will be negotiated, (5) At the termination of the evaluation period, the monitor(s) must be returned at Buyers expense or payment will be on demand within fifteen (15) days following evaluation termination. Notification of buyers intent must be provided to the Seller no less than five (5) days prior to the end of the evaluation period.
16. RE-STOCKING CHARGES
In the event the Buyer wants to return to the Seller products manufactured by the Seller, the Seller at his discretion may elect to re-stock these products and assess a re-stocking charge to the Buyer. This charge will be negotiated due to the uniqueness of the Buyers product but in no way be less than 30% of the single piece sell price.