terms AND CONDITIONS
1. Price;
Shipping; Cancellation. Prices are subject to change by Seller without
notice. Increases in labor, freight
and material costs before delivery of the goods or completion of the services,
plus applicable overhead, may be invoiced to Buyer. Premium time as required by
Buyer will be invoiced as an additional item.
Unless otherwise specified in Seller’s Terms, all payments are due upon
receipt of invoice. Late payments
will be subject to finance charges. Buyer shall be liable to Seller for all costs of
collection including attorney’s fees. All taxes and other charges imposed by local,
state, federal, or foreign governments or taxing authorities on the manufacture,
sale, shipment, import, export or use of the goods or services (other than
Seller’s incomes taxes) shall be paid by Buyer.
Unless otherwise specified in Seller’s Terms, all deliveries are FOB
point of shipment, which will be made in accordance with Seller’s
instructions. Upon delivery of
goods to carrier, all risk of loss and damage shall pass to Buyer. All shipping
dates are approximate. Seller may
ship and invoice for a quantity of up to 10 percent over or under the quantity
requested. Buyer agrees to accept and pay for such quantity, and Seller’s
performance shall be deemed complete. Partial deliveries shall be accepted and
paid for by Buyer at agreed prices and in accordance with Seller’s Terms.
Buyer may cancel this agreement only upon written notice to Seller and
payment of all reasonable cancellation charges including, without limitation,
(a) the price for goods and services completed prior to Seller’s receipt of
such notice; (b) all costs previously incurred in connection with uncompleted
goods or services together with reasonable profit thereon; and (c) the expenses
incurred by Seller by reason of such cancellation.
No goods will be accepted for return without a returned materials
authorization from Seller. Shipping of returns to be paid by Buyer.
2. Seller’s Proprietary Rights. All drawings, works of authorship, trade secrets, inventions, improvements or other items made or developed by or for Seller in connection with the performance of its obligations hereunder (the “Works”) shall be Seller’s property. Buyer hereby assigns all right and title in and to such Works to Seller. Buyer shall not use or disclose any of Seller’s trade secrets or other confidential information, whether or not designated as such, except as required in connection with the use of the goods or services covered hereunder.
3. Buyer’s Materials. All of Buyer’s tooling, goods, raw materials and other property in Seller’s possession (the “Materials”) shall be fully insured by Buyer, and Buyer releases Seller from all liability for loss or damage to such materials caused by Seller’s negligence or otherwise. At any time after three months following completion of this order, Seller may use or dispose of the Materials without notice or liability to Buyer and without having to reimburse Buyer for the Materials. Buyer shall be deemed to have approved any engineering or other specifications provided by Buyer to Seller.
4. Force
Majeure. Seller shall not be liable for any default or delay in performance
of its obligations under this agreement to the extent such default or delay is
attributable to events beyond the reasonable control of Seller.
Such events shall include acts of God, fires, explosions, accidents,
unusually severe weather conditions, embargoes, wars (declared or undeclared),
acts of terrorism, riots, labor disputes, strikes, governmental requirements,
shortages of raw materials or labor, transportation delays, and any other
similar or different contingencies. In
any such event Seller may, without further liability to Buyer: (a) postpone
performance; (b) make partial performance, or cancel all or any portion of this
agreement; or (c) allocate available quantities among its customers as Seller
deems appropriate. Cancellation of any part of this agreement shall not affect
Buyer’s duty to pay for performance of any other part hereof.
5. Warranty.
Seller warrants to Buyer that the goods and services provided under this
agreement shall conform with Seller’s published or applicable specifications
for a period of 30 days from Seller’s shipment of the goods and/or provision
of the services, as applicable; provided, however, that the foregoing warranties
shall not apply if Buyer misuses or mistreats such goods or services. Buyer’s
sole remedy for a breach of the foregoing warranties, and Seller’s sole
obligation, shall be for Seller to repair or replace the non-conforming goods,
or reperform the services, at no additional cost to Buyer, or, at Seller’s
option, to refund to Buyer the amounts paid by Buyer for such goods or services.
The warranties contained shall only apply if Buyer notifies Seller in
writing of any breach of warranty within 30 days after the goods were delivered
or the services performed. In addition, any services or goods furnished by
Seller’s suppliers or subcontractors are warranted only by such supplier or
subcontractor. EXCEPT AS SET FORTH ABOVE, THE GOODS OR SERVICES PROVIDED
HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS. SELLER HEREBY DISCLAIMS ALL
OTHER WARRANTIES, WHETHER WRITTEN, ORAL
OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF merchantability,
performance, or fitness for a particular purpose. ANY ADVICE OR
ASSISTANCE PROVIDED BY SELLER IS PROVIDED ON AN “AS IS” BASIS, AND SELLER
DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES REGARDING SUCH ADVICE OR ASSISTANCE.
6. Limitations of Liability. IN NO EVENT SHALL SELLER or
its affiliates BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF
DATA OR BUSINESS INFORMATION AND THE LIKE), WHETHER IN AN ACTION BASED IN
CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
OR ANY PRODUCTS OR SERVICES PROVIDED IN CONNECTION HEREWITH.
IN NO EVENT SHALL SELLER’S or its affiliates TOTAL LIABILITY TO BUYER
EXCEED THE AMOUNTS PAID BY BUYER HEREUNDER.
Any action for any loss or damage with respect to the goods or services
covered hereunder must be commenced by Buyer within one year after the first
incident giving rise to such action. The
foregoing limitations of liability are intended to be independent of any
exclusive remedies available under this Agreement, including any failure of such
remedies to achieve their essential purpose.
7. Indemnification.
Buyer shall defend, indemnify and hold Seller and its affiliates harmless from
any and all loss or damage sustained by Seller and from and against all claims
asserted against Seller with respect to the goods or services covered hereunder
arising in whole or in part out of (a) failure of Buyer, its agents, employees,
or customers to follow specifications, instructions, warnings or recommendations
furnished by Seller or others; (b) failure of Buyer, its agents, employees or
customers to comply with all applicable legal requirements; (c) misuse of the
goods by Buyer, its agents, employees or customers; (d) misrepresentation by
Buyer, its agents, employees or customers; (e) the sole or contributing
negligence of Buyer, its agents, employees or customers; or, (f) alleged
infringement of any patent, trademark, trade secret, copyright, or other
intellectual property or proprietary right of Buyer or a third party as a result
of Seller’s performance in accordance with Buyer’s designs, plans or
specifications. Buyer hereby waives and releases Seller and its affiliates from
all rights of contribution or indemnity to which it may otherwise be entitled.
8. Security
Interest. To secure payment of all sums due Seller hereunder, Seller retains
a security interest in the goods delivered hereunder and this agreement shall be
deemed a “Security Agreement” under the Uniform Commercial Code. Buyer
authorizes Seller as its attorney-in-fact to execute and file on Buyer’s
behalf all documents, including financing statements, Seller deems appropriate
to perfect such security interest. Title to the goods covered hereby shall
remain in Seller until full payment is received by Seller. Buyer represents that
it is solvent and an ongoing concern. If Seller at any time believes (a)
Buyer’s credit is impaired, (b) Buyer is insolvent, or (c) that Buyer is
otherwise no longer a viable on-going concern, Buyer shall be deemed to be in
material breach hereof and Seller may, without liability to Buyer, withhold its
performance hereunder, change the payment terms, and/or repossess goods or
services previously delivered.
9. Miscellaneous. This document constitutes the entire agreement between Buyer and Seller relating to the goods and services covered hereunder. No modifications shall be binding upon the Seller unless in a writing signed by Seller’s duly authorized representative. In making and performing this agreement, the parties hereto are acting and shall act as independent contractors. No waiver by Seller of default by Buyer shall be deemed a waiver of any subsequent default. This agreement is made and shall be governed by and construed in accordance with the law of the State of Texas, without regard to its provisions governing conflicts of law. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this agreement.