Terms & Conditions
GENERAL TERMS AND CONDITIONS OF SALE
1.1. General. These General Conditions, together with SELLER'S WARRANTY and return POLICY AND any nonconflicting provisions in Seller's quotation, are intended by the parties as the final expression, and contain the complete and exclusive statement, of the terms and conditions of this Agreement superseding all previous or simultaneous communications either oral or written. Seller's quotations are offers which may only be accepted in full. If Purchaser's order or other form states terms additional to or different from those set forth herein, this writing shall be deemed notification of objection to such additional or different terms. All orders will be acknowledged by Seller with an estimated shipment date. This Agreement is conditioned on Purchaser's acceptance and assent to the terms and conditions contained herein. Acceptance of this Agreement shall be deemed to have occurred at the earlier of (i) 7 days from the date specified on Seller's acknowledgment form unless written objection is received by Seller during such 7 day period, (ii) Seller's identification of existing products as Products to which this Agreement refers, or (iii) onset of Seller's manufacture of future Products. This Agreement cannot be waived, varied, modified or amended in any manner (including subsequent conduct between the parties) except in a writing signed by Seller. Any portion deemed invalid or unenforceable shall be struck and the remainder of this Agreement shall continue to be effective and binding. This Agreement shall bind and inure to the benefit of the parties and their respective successors and assigns. This Agreement is made under, and for all purposes shall be construed and enforced in accordance with and governed by, the laws of the Commonwealth of Pennsylvania, excluding (i) its conflict of laws provisions and (ii) the United Nations Convention for the International Sale of Goods. All actions arising hereunder shall be instituted in either Westmoreland County, Pennsylvania or the United States District Court for the Western District of Pennsylvania. Purchaser hereby consents to the jurisdiction of the state courts sitting in Westmoreland County, and the federal courts located in the Western District of Pennsylvania, and Purchaser hereby appoints the Secretary of State of Pennsylvania in Harrisburg as its agent for service of process and agrees to appear in action upon written notice thereof.
2.2. Price and Payment. Unless otherwise stated, all prices for the Products are net FCA (INCOTERMS 2010) Seller's facility in Greensburg, Pennsylvania ("FCA"), with freight and insurance for Purchaser's account, and shall be those prices in effect at the time Seller accepts Purchaser's order except as provided below. Seller reserves the right to make design, hardware, engineering and packaging changes, which do not interfere with the use for which such Products were designed and manufactured. As Seller's prices are based upon costs and conditions (including exchange rates) existing at time of acceptance, prices are subject to increase without notice to Purchaser as those conditions change, e.g. increase in price of materials and labor and exchange rate fluctuations. Prices exclude all duties, taxes, tariffs, or other charges ("Charges") which may be imposed upon the sale or use of the Products. All Charges paid by Seller shall be for Purchaser's account. Any claim for exemption from Charges must be plainly designated on the face of the order and accompanied by all required exemption certificates. Purchaser assumes responsibility/liability for payment of all state or municipal taxes, customs and imposts after delivery FCA, applicable to use or resale of goods purchased herein. For those Purchasers deemed by Seller, in its sole discretion, to be of known and acceptable financial standing, payments are due net 30 days from the date of invoice, in cash, without deductions or set-off. A credit application MUST be completed and returned to Seller for open terms. Otherwise, Seller may require orders to accompanied by cash or credit card or payment to be made C.O.D. or via irrevocable letter of credit in favor of, and acceptable to, Seller, established at Purchaser's expense. Seller accepts Visa, MasterCard, American Express and wire transfer of funds. A minimum order of $50.00 is required unless otherwise cleared through the Accounting and Business Office. For all sales outside the United States, Seller requires receipt of wire transfer of the total price prior to release of Products. Seller may require an irrevocable letter of credit in favor of, and acceptable to Seller, established at Purchaser's expense for Purchasers with a large revolving line of credit. All orders for special, non-standard Products ("Specials") must be prepaid by Purchaser and are not subject to cancellation or return. Seller shall not commence production of Specials until full payment is received. If payment is not made when due, Seller may suspend all future delivery or other performance with respect to Purchaser without liability or penalty and, in addition to all other sums payable hereunder, Purchaser shall pay to Seller (i) the reasonable costs and expenses incurred by Seller in connection with all actions taken to enforce collection or to preserve and protect Seller's rights hereunder, whether by legal proceedings or otherwise, including without limitation reasonable attorneys' fees, court costs and other expenses and (ii) interest on all amounts unpaid after 30 days charged at the monthly rate of 1.5%, which is an effective annual percentage rate of 18%, or the highest rate permitted by law, whichever is lower.
3.3. Title and Security Interest. Seller reserves, and Purchaser hereby grants to and creates in favor of Seller, a first priority purchase money security interest in each Product (or the equivalent under Purchaser's local law), including all component parts added by modification or repair, and all proceeds from the sale thereof, until full payment is received. Purchaser agrees to sign upon request, and hereby authorizes Seller to sign on its behalf and as its attorney in fact, any documents necessary to perfect Seller's security interest. Upon resale, Purchaser agrees to take, and immediately assign to Seller, a perfected security interest in each Product.
4.4. Shipment; Delivery; Inspection. Unless otherwise agreed in writing, shipment and delivery of the Products shall be FCA. All [U.S.] shipments are routed motor freight via Seller's carriers unless otherwise specified by Purchaser. Products are packaged in heavy duty cartons and are banded to a pallet. Products are typically one item per carton unless otherwise stated. All shipment, insurance or similar charges shall be borne by Purchaser. Delivery of the Products to the first carrier shall constitute delivery to Purchaser, whereupon risk of loss is transferred to Purchaser, and all claims for loss or damage in transit or for non-delivery shall be made by Purchaser against the carrier. At Seller's option, Products may be shipped in advance of the requested shipment date or in installments. All delivery information (including time for shipment) is approximate. Seller's sole responsibility is to use reasonable commercial efforts to meet specified shipment dates. Purchaser expressly absolves Seller from any liability for any loss or damage resulting from a failure to deliver or delays in delivery caused by any conditions related to, or caused by, typographical errors, failure to process or inaccurate processing of time-sensitive information and/or mechanisms, a labor dispute (e.g. strike, slowdown or lockout), fire, flood, governmental act or regulation (e.g. denial of export licenses), riot, inability to obtain supplies or shipping space, plant breakdown, power failure, delay or interruption of carriers, accidents, acts of God or other causes beyond Seller's control. Shipments are subject to Accounting and Business Office approval. notwithstanding the above, Seller shall not be liable for any damage or penalties whatsoever, whether indirect, incidental, special or consequential, resulting from Seller's failure to deliver or delay in delivery for any reason. Overages and shortages of 10% or less ("Permitted Shortages") are allowed. Within 15 business days of receipt, Purchaser shall inspect the Products. Unless Purchaser notifies Seller in writing of any nonconformities within 20 business days of receipt, Purchaser shall be deemed to have accepted the Products without qualification, and cannot, thereafter, reject any Products (except in accordance with Seller's Warranty and Return Policy). Once used, Products are deemed to be fully conforming to this Agreement.
5.5. Cancellation, Failure to Take Delivery. This Agreement cannot be canceled or postponed by Purchaser except with Seller's consent and upon terms that will indemnify Seller against loss (or in accordance with Seller's Warranty and Return Policy). If Purchaser cancels all or part of an order for standard Products ("Standard Products"), Purchaser shall pay Seller the greater of an amount equal to (i) 50% of the price for such cancelled Standard Products, or (ii) the actual and consequential damages incurred by Seller, including without limitation Seller's anticipated profit and expenses already incurred by Seller. If modifications, specifically ordered by Purchaser, are being made of the cancelled Products, the cancellation charge will also include such modifications made up to the date of cancellation. Any order cancelled after Products are shipped will be subject to restocking charges and all shipping costs. In the event that Purchaser places a large quantity order that requires special requests to Seller's vendors for the necessary material to complete the order and Purchaser reduces the order for any reason or no reason after an order acknowledgement has been sent by Seller, Seller shall charge Purchaser an amount based on the quantity, specialty and the requested delivery dates of the original order and the cost from Seller's vendors to stop or reduce the special request. Any large-order discounts shall be re-evaluated by Seller upon Purchaser's order reduction. If Purchaser postpones delivery, Purchaser shall pay Seller the sum of (i) a monthly charge equal to 1 1/2% of the total price for the Products subject to such postponement, and (ii) reasonable postponement charges; e.g. Seller's idle time, warehousing expense, etc.
6.6. Warranty. Seller's Warranty and Return Policy is attached hereto and made a part hereof as Exhibit A.
7 Disclaimer; Limitation of Liability, Time For Claims. Purchaser agrees that Seller shall not be liable for incidental, special, INDIRECT or consequential or other similar damages including but not limited to loss of profit or revenues, damage for loss of use of the Products, damage to property, claims of third parties, including personal injury or death on account of use of the Products or failure of Seller to warn against or instruct on, or adequately warn against or instruct on, the dangers of the Products or the safe and proper use of the Products, whether or not Seller has been advised of the potential for such damages. Seller's total liability hereunder from any cause whatsoever (except liability from personal injury caused by Seller's negligence), whether arising under contract, warranty, tort (including negligence), strict liability, products liability or any other theory of liability, will be limited to the lesser of Purchaser's actual damages or the price paid to Seller for the Products that are the subject of Purchaser's claim. All claims against Seller must be brought within one year after the cause of action arises, and Purchaser expressly waives any longer statute of limitations.
8 Specifications, Intellectual Property. Seller assumes no liability for any errors or omissions in any specifications provided or required by Purchaser ("Purchaser Specifications"), including any errors or omissions made by Seller in interpreting Purchaser Specifications. Purchaser Specifications not listed and priced by Seller are not part of this Agreement. Purchaser agrees, at its own expense, to defend, indemnify and hold harmless Seller, its officers, agents, employees and principals, against any and all losses, costs, including investigation costs, damages, claims, liabilities or expenses of any kind, including without limitation reasonable attorneys' fees, arising out of or resulting from, directly or indirectly, any claims of violation of proprietary rights of third parties due to, or injury or death to persons or damage to property caused by, Purchaser Specifications. Seller retains all copyrights and other ownership rights with respect to all drawings, models, plans, software, samples, and other documentation (collectively "Seller Documentation"). Seller Documentation may not be copied or disclosed to others without Seller's express written consent and must be promptly returned to Seller (i) if an order is not placed or (ii) at Seller's request. If an order is not placed in response to Seller Documentation, Seller is entitled to reasonable compensation.
9 Exports. Purchaser warrants that it is and will remain in compliance with all export and reexport requirements, laws and regulations of the United States of America and any other applicable export and reexport laws and regulations.\
The following legend should be placed on the front of the invoice and acknowledgment forms:
These terms and conditions set on the front and the reverse side hereof (the "General Conditions" or this "Agreement") apply to any sale of products (the "Products") by __________________________________ ("Seller"), and include LIABILITY AND REMEDY LIMITATIONS AND WARRANTY EXCLUSIONS, INCLUDING WITHOUT LIMITATION LANGUAGE EXCLUDING THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
SELLER'S WARRANTY AND RETURN POLICY
SEE STANDARD WARRANTY DOCUMENT QD-MGMT-03 (see below)