Terms and Conditions
1. Prices and Taxes: The following provisions apply unless otherwise provided on the face of the form. (Prices listed on quotation forms are subject to change without notice. Seller reserves the right to change the prices set forth on the face of this form to reflect Seller's prevailing prices at the time of shipment.) All sales are F.O.B. Seller's producing factory. All taxes, excises, customs duties, fees and other charges imposed by any governmental authority upon the manufacture, sale, transportation, export or import of the goods sold hereunder shall be paid by Buyer, or if required to be paid by Seller, shall be reimbursed to Seller by Buyer, and any increases after acceptance of order will be added to Seller's prices. Buyer will pay for any and all additional expense incurred by Seller as a result of Buyer's changing specifications or requirements after the date the order is acknowledged by Seller.
2. Payment: Unless otherwise provided on the face of this form, payment shall be net 30 days from the date of invoice, and shall be in United States currency.
3. Warranty: Seller warrants that at the time of delivery the goods sold hereunder shall be free from defects in materials and workmanship. In case of defect, at Seller's option, the goods will be repaired or replaced or credit in the amount of the sale price will be issued therefore, if the goods are returned prepaid to Seller's producing factory and Seller's subsequent examination reveals the goods not to be free from defects in materials and workmanship. The remedies in this section shall be Buyer's exclusive remedies for breach of this warranty or other claims for defects in goods sold hereunder. The full purpose of this exclusive remedy shall be to provide the Buyer with repair and replacement of defective goods in the manner provided for. This exclusive remedy shall not be deemed to have failed of its essential purpose so long as the Seller is willing and able to repair and replace defective goods in the described manner. SELLER MAKES NO WARRANTIES EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) OTHER THAN THOSE ABOVE SET FORTH.
4. Delivery and Performance: Delivery dates are approximate. Seller shall not be liable for delay or failure in delivery or manufacture caused by acts of God, fire or other casualties, accident, labor trouble or shortage, governmental action or regulations, inability to obtain or delay in obtaining material, equipment or transportation, or any other causes beyond its control. In the event of delay or failure in production, Seller may, but shall not be required to, allocate production and delivery among its customers. Seller will not be prohibited from rendering the services or manufacturing or selling the products which are the subject of this acknowledgement to third parties absent Seller's express agreement to such prohibition signed by one of its officers.
5. Limitation of Liability: SELLER'S RESPONSIBILITY FOR ANY CLAIMS, DAMAGES, LOSSES OR LIABILITIES ARISING OUT OF OR RELATED TO ITS PERFORMANCE OF THIS CONTRACT OR THE GOODS COVERED HEREUNDER, INCLUDING BUT NOT LIMITED TO, ANY REPAIR OR REPLACEMENT OF GOODS UNDER THE WARRANTY SHALL NOT EXCEED THE SALES PRICE OF THE PARTICULAR INDIVIDUAL PRODUCT WHICH IS THE SOURCE OF BUYER'S CLAIM. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING BUT NOT LIMITED TO, LOSS OF USE OF PRODUCTIVE FACILITIES OR EQUIPMENT, LOSS OF PROFITS, PROPERTY DAMAGES, PERSONAL INJURIES OR LOSS OF PRODUCTION, WHETHER SUFFERED BY BUYER OR ANY THIRD PARTY, IRRESPECTIVE OF WHETHER SUCH CLAIMS OR ACTIONS FOR DAMAGES ARE BASED UPON CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
6. Shortages: Seller reserves the right to reject all claims for shortages not made within fourteen days after receipt of shipment.
7. Returns: Goods cannot be returned for credit except with Seller's written permission in advance. Credits allowed by Seller upon such returns shall be limited to stock items in factory condition and will be subject to deduction of 20 percent as a service charge for handling, retesting and restocking.
8. Risk of Loss: Unless otherwise provided on the face of the form, risk of loss or damage to the goods shall pass from Seller to Buyer upon delivery to Buyer or its representative, to a carrier for shipment to Buyer, or to the Post Office for mailing to Buyer. In the case of returns, goods shall be at Buyer's risk until received by Seller.
9. Cancellation or Suspension by Seller: If, in the exclusive judgment of Seller, the financial condition of Buyer at any time does not justify the commencement or continuance or production or shipment on the terms specified herein, Seller, in addition to all other remedies it may have, may make written demand for full or partial payment in advance, may suspend its performance until such payment is made, and if such payment is not received by Seller within ten days after delivery in person or by mailing of said demand, may terminate its further performance on this contract and may treat the contract as having been repudiated by Buyer. Seller reserves the right to cancel Buyer's order in the event that (a) any government price regulation, schedule or ceiling prescribes a price lower than Seller's price as established in the order acknowledgment, or in any way prevents Seller from purchasing or otherwise acquiring any commodity or service necessary to the performance of the order, or in any way prevents Seller from adjusting its prices when the cost of any such commodity or service is increased and, (b) in the event any major change in economic conditions renders Seller's performance unprofitable.
10. Cancellation by Buyer: No orders can be cancelled by Buyer except with Seller's written permission. If Seller consents to cancellation than Seller (a) shall as soon as practicable cease work and the placing of all orders for materials in connection with the performance of Buyer's order, (b) shall so far as possible and as soon as practicable, cancel all then existing orders for materials to be used in connection with Buyer's order and (c) if the ordered material cannot be sold to other customers within a reasonable period of time, shall transfer to Buyer title to all completed and partially completed material called for under Buyer's order and not previously delivered.
In consideration of Seller's allowing cancellation of Buyer's order, Buyer shall pay to Seller the following: (a) the purchase price for all goods completed when Seller shall have ceased work under Buyer's order, (b) all costs, expenditures and commitments made or incurred by Seller in connection with the uncompleted portion of Buyer's order including expenditures made by Seller in settling or discharging that portion of its outstanding obligations or commitments which it had made with respect to the uncompleted portion of Buyer's order and (c) profit on the uncompleted portion of Buyer's order to be computed as follows:
(1) Estimate the profit which Seller would have realized on the uncompleted portion of Buyer's order if the order had been completed and labor and material costs prevailing at the date of cancellation had remained in effect.
(2) Estimate the percentage of completion of the uncompleted portion of Buyer's order.
(3) Multiply the anticipated profit determined under (1) by the percentage determined under (2). The result is the amount to be paid to the Seller as a proportionate part of its profit as provided above.
Buyer shall furthermore reimburse Seller for expenditures made and costs incurred after the date of cancellation for the protection of Buyer's property and for such expenditures and costs as may be necessary in connection with the settlement of Buyer's order. The sum of all amounts payable under this cancellation clause plus the sum of all amounts previously paid under Buyer's orders shall not exceed the purchase price of all goods ordered by Buyer plus all amounts payable to Seller under the provisions of the preceding sentence.
11. Indemnification: Buyer shall indemnify and hold harmless Seller from any claim made by anyone against Seller that any product sold by Seller pursuant to any order placed by Buyer violates or infringes upon any rights claimed by anyone, including without limitation, patent, trademark, trade secret and copyright rights (the Claim). Buyer expressly agrees that its obligation of indemnification shall include without limitation, compensatory damages, punitive damages, treble damages, costs, out of pocket expenses, attorneys fees and the reasonable value of any and all engineering and management time expended by any personnel of Seller in defense of any Claim.
12. Export Sales: Unless otherwise provided on the face of the form, the following provisions apply to Export Sales. The consignee must furnish import license when so required by the country of destination. In case the commodity requires an export license from the United States Department of Commerce or from the United States Department of State, the consignee and/or end user in the country of destination will furnish an end user statement and Import Certificate and/or Transaction Statement when requested by Seller in order to enable the Seller to apply for an export license. All quotations and order acknowledgments are subject to Seller's obtaining a United States Export license in case the commodity requires such a license. If required by Seller, the Buyer further agrees to furnish a delivery verification certificate after the merchandise has been received in the country of destination.
13. Terms and Modifications: The terms and conditions of this form constitute the final, complete and exclusive statement of all terms of agreements between Seller and Buyer. No representations of any kind will be binding on the Seller unless they are set forth herein. No subsequent agreement or understanding in any way altering these terms and conditions shall be binding upon Seller unless made in writing and signed by an authorized officer of Seller.
14. Governing Law: The validity, construction and interpretation of all documents relating to this sale, and the rights and duties of the party thereto shall be governed by the laws of the State of New Hampshire.
15. Other Terms and Conditions: None.