STANDARD TERMS AND CONDITIONS OF SALE AND WARRANTY
THE FOLLOWING TERMS/CONDITIONS, TOGETHER WITH ANY OTHER TERMS/CONDITIONS SPECIFICALLY AGREED TO IN WRITING BY SELLER, SHALL APPLY TO ALL ORDERS (“Order(s)”) FROM, AND SALES OF PRODUCTS (“Products”) OR SERVICES (“Services”) TO BUYER. ANY ACCEPTANCE OF ANY ORDER OF BUYER IS CONDITIONED UPON THESE TERMS/CONDITIONS. ANY ADDITIONAL OR DIFFERENT TERMS/CONDITIONS PROPOSED BY BUYER IN ANY DOCUMENT ARE OBJECTED TO AND SHALL NOT BE BINDING UPON SELLER.
No salesperson is authorized to bind Seller to any promise or understanding not expressed herein.
I. PRICES
All prices are subject to change without notice in the event of any
changes in cost of materials or labor, specifications, quantities,
delivery schedules, customs duties, other factors beyond Seller’s
control, or in the event of delays caused by instructions of the
Buyer, or failure of the Buyer to give Seller adequate information.
Further, prices payable by the Buyer shall be subject to
immediate increase, should the Seller as a result of
governmental action or regulation including, without limitation,
those contemplated by an investigation under Section 232 of the
Trade Expansion Act of 1962 (19 U.S.C. §1862), incur additional
duties, tariffs or restrictions on products sold hereunder, or on
the raw materials that are used in making such products. In no
event shall prices include any amounts imposed on the Buyer in
connection with Buyer’s purchases from Seller, such as taxes,
including but not limited to Value Added Tax (VAT) or excise
taxes, duties, tariffs, or any other costs assessed against the
Buyer by a governmental authority.
II. DELIVERY
Delivery dates are approximate and are dependent on prompt
receipt by Seller of all necessary information. Seller may deliver
all or any part of Products/ Services as early as 30 days in
advance of agreed schedule. The point of delivery shall be "Exworks"
Seller’s premises, unless otherwise specified by Seller.
Upon delivery, title to Products and all risk of loss or damage
thereto shall pass to Buyer. Where Buyer notifies Seller that it
cannot take timely delivery of the Products, Seller may place
such Products in storage, at the risk of Buyer, and Buyer shall
reimburse Seller for all expenses incurred in connection with
such storage. Buyer shall dispose of the packing materials for
Products at its own expense, and shall defend, indemnify and
hold harmless Seller from any legal obligations in connection
with such packing waste.
III. PAYMENT
A. The term of payment shall be net 30 days from date of
Seller's invoice, unless otherwise specified. Payments shall be
made by Buyer without any deduction or set-off. Unless
otherwise agreed, payment shall be made in U.S. dollars. Seller
may charge late payment fees at the rate of 1.5% per month, or
the highest rate permitted by law, whichever is less, accruing
daily.
B. If the financial condition of Buyer is unsatisfactory to Seller,
Seller may require full or partial payment in advance, or
satisfactory security, in the form of a letter of credit or otherwise.
In the event of bankruptcy or insolvency of Buyer, Seller may
immediately cancel any Order then outstanding.
C. Buyer grants Seller a purchase money security interest in
Products located in the United States, or Services, as well as
any proceeds, for the purpose of securing the obligations of
Buyer hereunder. Buyer authorizes Seller to execute on Buyer’s
behalf and file such financing statements as Seller deems
appropriate to perfect and notify Buyer’s creditors of Seller’s
security interest.
IV. VARIATIONS IN QUANTITY; CHANGES.
Buyer shall accept delivery of quantities greater or smaller than
the quantity specified in Order(s), provided that any such
variation shall not exceed 5% of the quantity originally specified,
or 2 units, whichever is greater. Seller shall not be required to
give notice of any such variations other than in the applicable
shipping notice and invoice. Seller reserves the option to make
changes to Products or Services which do not affect form, fit, or
function, and shall deliver Products to the latest configuration
part number at the time of delivery.
V. EXPORT CONTROLS; FCPA; ANTI-BOYCOTT
A. Buyer shall not make any disposition of the Products, by way
of transshipment, re-export, diversion or otherwise, except as
applicable U.S. export laws and regulations may expressly
permit, and other than in and to the ultimate country of
destination specified on Order(s) or declared as the country of
ultimate destination on Seller's invoices or in the End Use
Statement that Buyer supplies Seller. Seller shall not be named
as shipper or exporter of record or U.S. principal party-in-interest
(USPPI) unless specifically agreed to in writing by Seller in which
case, Buyer shall provide Seller with a copy of the documents
filed by Buyer for Export clearance purposes. At Seller’s
request, Buyer shall supply end-use and end-user information to
determine export license applicability. Failure of Buyer to comply
with this section shall constitute a material default allowing Seller
to cancel related Order(s) without liability.
B. Buyer warrants that it shall not violate or cause the Seller to
violate the U.S. Foreign Corrupt Practices Act of 1977 (FCPA),
as amended, the United Kingdom Bribery Act (UKBA) of 2010,
as amended, or their respective implementing regulations in
connection with Buyer’s sale or distribution of the Products
and/or Services, and that Buyer does not know or have reason to
believe that any consultant, agent, representative or other
person retained by Buyer in connection with the sale and/or
distribution of Products/Services has violated, nor caused Seller
to violate the FPCA and/or the UKBA. Where Buyer learns of or
has reason to know of any violation of FCPA and/or or UKBA in
connection with the sale or distribution of Products/Services,
Buyer shall immediately advise Seller.
C. Buyer further warrants that Buyer shall not violate or cause
Seller to violate the U.S. Antiboycott Provisions of the U.S.
Export Administration Regulations issued pursuant to the U.S.
Export Administration Act of 1979, as amended, in connection
with Buyer’s purchase of Products/Services and that Buyer shall
not request or require Seller to make statements or certifications
against countries that are not subject to boycott by the U.S.
VI. WARRANTIES
A. Seller warrants that Products manufactured by Seller, when
delivered, shall be free from defects in material/workmanship.
Seller warrants that Services shall be performed in accordance
with generally accepted industry practice. Seller's obligations
under this warranty shall be limited exclusively to repairing or
replacing, at Seller's option, any part of Products which, if
properly installed, used and maintained, proved to have been
defective in material or workmanship within 1 year from the date
of shipment, or re-performing the Services. Seller warrants for a
period of 1 year from the date of shipment that software or
firmware, when used with Products, shall perform in accordance
with Seller’s published specifications. Seller makes no warranty,
express or implied, that the operations of the software or
firmware shall be uninterrupted or error-free, or that functions
contained therein shall meet or satisfy the Buyer’s intended
use/requirements. Buyer shall notify Seller of any defect in the
quality or condition of Products (including software/firmware) or
Services within 7 days of the date of delivery or performance,
unless the defect was not apparent on reasonable inspection, in
which case, within 7 days after discovery of the defect. If Buyer
does not provide such timely notification, it shall not be entitled to
reject Products (including software/firmware) or Services, and
Seller shall have no liability for such defect.
B. Seller's warranty obligations shall not apply to Products which
(1) have been altered or repaired by someone other than Seller,
or (2) have been subjected to misuse, neglect, or improper use
or application, or (3) are normally consumed in operation, or (4)
have a normal life inherently shorter than the warranty period
stated therein.
C. No Products may be returned unless authorized in advance
by Seller, and then only upon such conditions to which Seller
may agree. Buyer must obtain a Return Material Authorization
(RMA) number from Seller prior to any return shipment, and such
RMA number must appear on the shipping label and packing
slip. Buyer shall be responsible for returned Products until such
time as Seller receives the same at its facility, and for all charges
for packing, inspection, shipping, transportation or insurance
associated with returned Products.
D. This section VI sets forth the exclusive remedies and
obligations for claims based upon defects in or nonconformity of
Products/Services, whether the claim is in contract, warranty, tort
(including negligence of any degree or strict liability) or
otherwise. THE FOREGOING WARRANTIES ARE IN LIEU OF
ALL OTHER WARRANTIES, WHETHER ORAL, WRITTEN,
EXPRESS, IMPLIED OR STATUTORY. NO IMPLIED OR
STATUTORY WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR PARTICULAR PURPOSE SHALL APPLY.
VII. PATENTS/INDEMNITY
If Buyer receives a claim that Products, or part thereof
manufactured by Seller infringes a patent, Buyer shall notify
Seller promptly in writing and give Seller information, assistance
and exclusive authority to evaluate, defend and settle such
claim. Where Buyer has furnished specifications/designs for the
manufacture of the allegedly- infringing Products, Buyer shall
defend, indemnify and hold harmless Seller against third-party
claims for infringement arising out of Seller’s use of such
specifications/designs.
VIII. LIMITATION OF LIABILITY
The total liability of Seller on any claim, whether in contract, tort
(including negligence of any degree and strict liability) or
otherwise arising out of, connected with, or resulting from the
manufacture, sale, delivery, resale, repair, replacement or use of
any Products/Services, shall not exceed the price allocable to
the Products/Services or part thereof which gives rise to the
claim. IN NO EVENT, WHETHER AS A RESULT OF BREACH
OF CONTRACT, WARRANTY, TORT, (INCLUDING
NEGLIGENCE OF ANY DEGREE, STRICT LIABILITY OR
PATENT INFRINGEMENT) OR OTHERWISE, SHALL SELLER,
ITS AFFILIATES, SUBCONTRACTORS, OR SUPPLIERS BE
LIABLE FOR ANY LOSS OF PROFIT OR REVENUES, LOSS
OF USE OF THE PRODUCTS OR SERVICES, OR ANY
ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF
SUBSTITUTE GOODS, FACILITIES, SERVICES OR
REPLACEMENT POWER, DOWNTIME COSTS OR CLAIMS
OF BUYER'S CUSTOMERS FOR DAMAGES OR FOR ANY
SPECIAL, PROXIMATE, CONSEQUENTIAL, INCIDENTAL,
INDIRECT OR EXEMPLARY DAMAGES. If Buyer transfers title
to, or leases Products sold hereunder to, or otherwise permits or
suffers use by, any third party, Buyer shall obtain from such third
party a provision affording Seller and its subcontractors/suppliers
the protection of the preceding sentence. Any action against
Seller must be brought within 18 months after cause of action
accrues.
IX. EXCUSABLE DELAYS
A. Seller shall not be liable for delays in delivery or failure to
perform due directly or indirectly to causes beyond Seller's
reasonable control including but not limited to: acts of God; war;
terrorism; civil commotion; riots; embargoes; government
regulations, orders, instructions or priorities; port congestion;
acts of or failure to act on the part of Buyer or its
agents/employees; fires; floods; sabotage; nuclear incidents;
earthquakes; storms; epidemics; strikes; lockouts or other labor
difficulties; shortages of or inability to timely obtain proper labor,
materials, components, shipping space or transportation, fuel,
supplies or power at current prices; or due to limitations
imposed by the extent of availability of Seller’s normal
manufacturing facilities.
B. If a delay excused per the above extends for more than 90
days and the parties have not agreed upon a revised basis for
continuing providing Products/Services at the end of the delay,
including adjustment of the price, then either party (except where
delay is caused by Buyer, in which event only Seller) upon thirty
(30) days’ notice may terminate the Order with respect to the
unexecuted portion of the Products/Services, whereupon Buyer
shall promptly pay Seller its reasonable termination charges
upon submission of Seller's invoices thereof.
X. SOFTWARE/TECHNICAL/PROPRIETARY INFORMATION
A. Buyer shall not acquire any rights to any software which may
be delivered with Products, except as granted in Seller’s standard
software license. Any software license granted in connection with
Products shall be an interim license, which may be withdrawn,
pending payment for Products in full.
B. The purchase of Products shall not include any right to supply
of technical information such as drawings or specifications.
C. Proprietary information, including drawings, documents,
technical data, reports, software, designs, inventions and other
technical information supplied by Seller in connection herewith
(hereinafter called "Data"), shall remain Seller's sole property and
shall be held in confidence by Buyer. Data shall not be
reproduced, used or disclosed to others by Buyer without Seller’s
prior written consent. Upon completion of Order, Buyer shall
promptly return all Data to Seller together with all copies or reprints
thereof then in Buyer's possession or control, and Buyer shall
thereafter make no future use, either directly or indirectly, of any
Data or any information derived therefrom without Seller's prior
written consent. The foregoing shall in no way obligate Seller to
provide or supply Data.
XI. DIES, TOOLS, PATTERNS
Seller’s charges for dies, molds, patterns and the like represent
the Buyer’s proportionate cost thereof, it being expressly
understood that they remain the property of Seller. Modifications
made to dies, molds, patterns and the like in order to
manufacture Products shall be at the discretion of Seller.
XII. GENERAL
A. The rights and obligations of the Buyer and Seller hereunder
shall be governed in all respects by the law of the
Commonwealth of Pennsylvania, U.S.A. The exclusive forum for
adjudication of any disputes shall be the federal or state courts of
the Commonwealth of Pennsylvania, and Buyer/Seller hereby
consent to personal jurisdiction and venue in such courts in any
proceeding. The United Nations Convention on the International
Sale of Goods shall not apply.
B. These Terms and Conditions of Sale together with any other
terms specifically agreed to in writing by Seller constitute the
entire agreement between Buyer and Seller and supersede any
prior or contemporaneous representations, agreements,
proposals, warranties, or understandings, oral or written, express
or implied. No waiver, modification, amendment, rescission or
other change to these Terms and Conditions of Sale shall be
binding unless specifically agreed to in writing by an authorized
representative of Seller.
C. The invalidity, of any part hereof shall not affect the validity of
the remainder. The failure of Seller to assert any right at any time
hereunder shall not prevent Seller's subsequent assertion of the
same or different rights.
D. Buyer may not assign this contract without the prior written
approval of the Seller.
XIII. PROHIBITION FOR HAZARDOUS USE
Products sold hereunder are not intended for application in, and
shall not be used by Buyer in construction or application of a
nuclear installation or in connection with use or handling of
nuclear material or for any hazardous activity or critical
application, where failure of a single component could cause
substantial harm to persons or property, unless Products have
been specifically approved for such activity or application. Seller
disclaims all liability for loss or damage resulting from such
unauthorized use and Buyer shall defend, hold harmless and
indemnify Seller against any such liability, whether arising under
breach of contract, warranty, tort (regardless of the degree of
fault or negligence), strict liability or otherwise.
Where Seller approves the application of the Products in a
nuclear facility, the Buyer shall, before such use or provision,
arrange for insurance or governmental indemnity protecting the
Seller against liability and hereby releases and agrees to
indemnify the Seller and its suppliers for any nuclear damage,
including loss of use, in any manner arising out of a nuclear
incident, whether alleged to be due, in whole or in part to the
negligence or otherwise of the Seller or its suppliers.
XIV. STATUTORY REQUIREMENTS
Seller reserves the right to make any changes in the general
specifications of the Products which are required for the
Products to conform to any statutory requirement.
XV. GOVERNMENT CONTRACTS
Only Federal Acquisition Regulation (“FAR”) supplement clauses
expressly accepted in writing by Seller shall be included or
incorporated by reference herein. Seller shall not be bound by
and makes no representation of compliance with any FAR or
FAR supplement clauses that Seller shall not have expressly
accepted in writing.