All sales by Seller are subject to all of the following Terms and Conditions unless otherwise agreed in writing by an authorized representative of Seller. The agreement between Buyer and Seller exclusively includes these Terms and Conditions and the commercial terms and technical specifications in Seller’s quotation (“Agreement”). Any document from Buyer that contains terms and conditions in addition to or different than those set forth herein are objected to and shall not be binding upon Seller unless acceptance thereof is made in writing by an authorized representative of Seller. This Agreement contains the entire agreement between Buyer and Seller and supersedes all prior agreements, representations, and communications, whether oral or written, with respect to or in connection with the subject matter of this Agreement. This Agreement can be modified only by a writing signed by both parties. The parties acknowledge that they have entered in this Agreement in reliance upon their own independent investigation and analysis and neither has been induced to enter into this Agreement by virtue of, and is not relying upon, any representations or warranties not set forth in this Agreement.
Unless otherwise agreed in writing by the parties, delivery is ExW Seller’s facility or Seller’s supplier’s facility. Shipment of the Equipment will be arranged by the Buyer at Buyer’s cost, prepay and add, and Buyer will bear all risk of loss after delivery. Buyer is responsible for inspecting the Equipment for damage resulting from Seller’s insufficient packing upon receipt. Notification of any claim for such damage must be made within ten (10) working days. Any claim beyond the ten-day period will not be honored. While Seller will use commercially reasonable efforts to ship and/or deliver Equipment or commence or complete FAT, SAT or services by the dates specified, quoted, or acknowledged by Seller, all such dates are approximate and not guaranteed. If Buyer is unable to receive delivery of the Equipment or delays its delivery for more than 30 days after the date specified by Seller, Seller will upon written notice to Buyer put the Equipment into storage at Buyer’s expense, the Equipment will be deemed delivered and any remaining balance of the purchase price will be immediately due and payable.
If Buyer fails to make any required payment under this Agreement when due, all amounts then remaining unpaid hereunder shall, at the option of Seller, become immediately due and payable within twenty (20) days of the demand for payment. Seller may, with written notice and at its option, suspend performance, including its warranty obligations, or take possession of the Equipment, dispose of the same as it sees fit and retain all payments made thereon from the Buyer. Sale of the Equipment to a third party shall NOT operate to release Buyer from the obligation to pay in full all amounts herein agreed to be paid by the Buyer. Seller reserves a purchase money security interest in the Equipment to secure payment of the purchase price. Such security interest will be retained until the purchase price is paid in full. Buyer agrees that Seller will have the right to file this contract or financing statements pursuant to the Uniform Commercial Code or other applicable law to evidence or perfect Seller’s security interest in the Equipment.
Buyer shall be solely responsible for the payment of any and all taxes, tariffs, duties, import/export fees, and similar charges imposed in connection with the sale, manufacture, components procured by Seller for the Equipment manufacture process, shipment, delivery, or use of the Equipment, regardless of when such charges are assessed. Seller shall have no obligation to pay such amounts unless expressly agreed in writing.
All pricing is in US dollars.
Changes to the specifications or Equipment description shall be valid only if in writing signed by authorized representatives of Buyer and Seller. Such changes must provide for any modification in the price or in time of performance or delivery. Minor variations by Seller in the details of design or construction of the Equipment shall not give rise to any claim of defect or default, and the Seller reserves the right to make such minor changes in details of design and construction as shall in its judgment constitute an improvement over those set forth and described.
Seller will provide a FAT at Seller’s facility. Performance criteria, including materials to be used to perform the FAT, are to be evaluated and confirmed suitable for the application(s) and agreed to by the parties prior to order placement. Buyer is required to provide adequate quantities of previously agreed to materials and/or product(s) needed for FAT and any preliminary testing prior to FAT at least five (5) weeks prior to FAT. Materials must be the same as agreed to prior to order placement and will be free from defects and equivalent to those intended for final production. Seller will advise Buyer of a revised lead time to FAT resulting from Buyer’s delays in providing said materials on time or any other delay caused by Buyer. Total time provided for FAT will be one working day. Any additional FAT will be invoiced in accordance with the Service Rates section below.
If a SAT is specified in the quotation, Seller and Buyer will perform the SAT together at Buyer’s facility after installation and preliminary testing is complete. Buyer is required to provide adequate quantities of materials and/or product for SAT and any preliminary testing prior to SAT. Materials used for the SAT will be equivalent to those used for the FAT. If Buyer delays SAT beyond thirty (30) days from delivery, any outstanding payments will be due and payable. SAT will be conducted within one working day. Any additional SAT required will be billed in accordance with the Service Rates section below.
The training will be performed at Buyer’s facility. Buyer is required to have all personnel and utilities ready. The installation cost is an estimate for the Buyers specific application. The actual cost will be billed in accordance with the Service Rates section below.
Service will be performed by the Seller or Seller’s subcontractor in accordance with the Service Rates section below. Seller will perform services in a good and workmanlike manner and warrants that any parts supplied in connection therewith will be free from defects in workmanship and material under normal use and service. If any part or service is found and reported within 90 days from the date it is furnished to be defective, Seller will re-perform any defective service and/or repair or replace any part without charge. Seller’s liability for claims under this warranty is limited to re-performing, repairing and/or replacing as stipulated above. All other costs, expenses and damages are excluded.
All in-person or virtual visits for additional FAT, installation, training, service and/or additional SAT will be billed at Seller’s prevailing rates at time of service. Purchase orders, or a similar authorization in writing, must be issued in order to commence a service call. Buyer may authorize overtime, second/third shift, and Saturday time to be performed at Seller’s prevailing rates at time of service. Any travel, lodging, or out-of-pocket expense incurred will be billed in accordance with Seller’s current rate sheet at time of service. Service Rates are subject to change without notice. The current service rate sheet is available upon request.
Seller warrants that during the Warranty Period, the Equipment will be free from material defects in design, materials and workmanship and will operate in accordance with all applicable specifications for the Equipment, including any FAT and/or SAT criteria, provided by Seller to the Buyer and as defined in this Agreement. The Warranty Period is defined as the lesser of 2080 machine hours or the twelve (12) month period following delivery of said Equipment. Seller must have access to the Equipment to conduct repairs or replacements during this Warranty Period. In the event that parts need to be replaced, Seller will replace or repair, at its option and free of charge, FOB its factory or point of manufacture. The result of ordinary wear and tear, improper operations or maintenance, or damage from use of corrosive or abrasive materials shall not be considered a defect in material or workmanship. No claim by the Buyer for damages, labor or installation charges will be allowed, but the Buyer will be reimbursed for shipping charges to Seller’s factory or point of manufacture if the part, as determined by the Seller, is defective. Equipment manufactured or supplied by others, including electrical components, is sold exclusively under such warranty as the manufacturer may give to Seller and to the extent enforceable by Seller. Seller’s sole liabilities and Buyer’s sole remedies for breach of this Limited Warranty are i) Seller’s repair or replacement of the Equipment at Seller’s cost as provided above; ii) Buyer’s retention of the Equipment at a mutually agreed reduced price if the Equipment cannot be repaired or replaced to meet this Limited Warranty; or iii) if the parties cannot agree to such reduced price, the refund of the purchase price paid upon the return of any delivered Equipment to Seller FOB Buyer’s facility.
THIS LIMITED WARRANTY SET FORTH IN THE PRECEDING PARAGRAPH IS THE SOLE AND EXCLUSIVE WARRANTY FOR THE EQUIPMENT AND NO OTHER WARRANTY, EXPRESS OR IMPLIED, WILL APPLY. SELLER SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
The Limited Warranty under this Agreement does NOT include any repairs of damage or other service as a result of or arising from alterations, changes, modifications, variations, adaptations, or any changes to the Equipment, other than that which was provided by the Seller; misuse of the Equipment or use of the Equipment in any manner other than its specified purpose; accident, neglect, or abuse of the Equipment; attachment of other equipment or devices to the Equipment, tooling or other items which are NOT provided for or approved, in writing, in advance by Seller; or repairs made by any entity NOT authorized in advance, in writing, by Seller; the use of any unauthorized parts or accessories; or mishandling, improper installation, or improper care, including failure to properly maintain the Equipment.
In no event, shall Seller be liable for any special, indirect, incidental, punitive, or consequential damages, or any damages resulting from the loss of use or profits. Seller’s liability to Buyer shall NOT, in the aggregate for all claims, exceed the purchase price paid by Buyer.
Neither Party shall be held liable or responsible to the other Party nor be deemed to be in default under, or in breach of any provision of, this Agreement for failure or delay in fulfilling or performing any obligation of this Agreement when such failure or delay is due to force majeure. For purposes of this Agreement, force majeure is defined as causes beyond the control of the Party, including, without limitation, acts of God; acts, regulations, or laws of any government; war, civil commotion; destruction of production facilities or materials by fire, flood, earthquake, explosion, or storm; labor disturbances; epidemic; and failure of public utilities or common carriers. In such event, the affected Party shall immediately notify the other Party of such inability and of the period for which such inability is expected to continue. To the extent possible, each Party shall use reasonable efforts to minimize the duration of any event of force majeure. If such force majeure event is expected to delay production or assembly for more than 30 days, the Parties shall immediately consult with each other to consider how to address such delay.
Any and all specifications, quotations, information, samples, and equipment designs, whether disclosed verbally or in written form, that relate to the design, manufacture, sale, or production of Equipment or accompanying any quotation are confidential and proprietary and shall remain the property of Seller, and shall not be disclosed to others nor used for the design or manufacture of any equipment. Buyer will not allow the design of the Equipment or the Equipment itself or any part of it to be copied, reverse engineered, or otherwise made available to a third party, including any of Seller’s competitors.
No waiver of any provisions of this Agreement shall be binding unless in writing signed by an authorized representative of the party against whom the waiver is asserted and unless expressly made generally applicable shall only apply to the specific case for which the waiver is given. Failure of either party to insist upon strict performance of this Agreement shall not be construed as a waiver of any terms or conditions thereof.
This Agreement shall be construed, governed, and enforced in all respects in accordance with the laws of the State of New Jersey. The parties exclude the application of the 1980 United Nations Convention on Contracts for the International Sale of Goods if it would otherwise be applicable. Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach thereof, shall first be submitted to mediation administered by the American Arbitration Association under its Commercial Mediation Procedures. If the dispute is not resolved through mediation within 30 days, it shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The place of arbitration shall be New Jersey, and the proceedings shall be governed by the laws of the State of New Jersey. Judgement on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. The arbitration shall be conducted by one neutral arbitrator, unless the parties agree otherwise. The mediation and arbitration processes shall be confidential, and any statements made during these proceedings may not be used in subsequent litigation, consistent with New Jersey law. In any arbitration or legal proceeding arising out of or relating to this contract, the non-prevailing party shall pay the reasonable attorneys’ fees and costs incurred by the prevailing party.