IEP TECHNOLOGIES, LLC (“SELLER”)
TERMS AND CONDITIONS OF SALE
THE TERMS AND CONDITIONS REFERENCED ON THE FACE SIDE OF THE SALES ACKNOWLEDGEMENT AND SPECIFIED BELOW CONSTITUTE THE ENTIRE AGREEMENT BETWEEN SELLER AND BUYER WITH RESPECT TO ANY SALE OF GOODS CONSUMMATED PURSUANT TO THIS SALES ACKNOWLEDGEMENT, AND NO OTHER TERMS AND CONDITIONS SHALL BE OF ANY FORCE OR EFFECT. SELLER’S ACCEPTANCE OF THE BUYER’S PURCHASE ORDER IS EXPRESSLY CONDITIONED UPON ACCEPTANCE BY BUYER OF THESE TERMS AND CONDITIONS. BUYER WILL BE DEEMED TO HAVE ASSENTED TO ALL SUCH TERMS AND CONDITIONS IF ANY PART OF THE DESCRIBED GOODS IS ACCEPTED. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS CONTAINED IN BUYER’S PURCHASE ORDER OR IN ANY OTHER CORRESPONDENCE SHALL BE DEEMED OBJECTED TO BY SELLER AND SHALL BE OF NO FORCE OR EFFECT, UNLESS BUYER AND SELLER SPECIFICALLY AGREE IN WRITING ON TERMS AND CONDITIONS DIFFERENT FROM THOSE CONTAINED HEREIN.
PART II – STATIC GROUNDING PRODUCTS
1. Any additional contradictory or different terms contained in any other document or communication of Buyer pertaining to the Goods described on the face hereof (the “Goods”) are hereby objected to upon Seller’s acceptance of Buyer’s order the terms and provisions set forth herein and in Seller’s Acknowledgment shall constitute the entire agreement between Buyer and Seller and no statement, correspondence, sample or other term shall modify or affect the terms hereof. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any term used in the Agreement. Acceptance or acquiescence in a course of performance rendered under this Agreement shall not be relevant or determine the meaning of this Agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and the opportunity for objection. All orders are subject to the approval by Seller at its offices in Marlborough, MA. No waiver or alteration of terms herein shall be binding unless in writing, signed by an executive officer of the Seller.
2. PRICE. All prices are FCA Seller’s plant, Marlborough, MA, unless otherwise specifically set forth on the sales acknowledgement. Prices stated are subject to change without notice in the event of: (i) alterations in specifications, quantities, designs, or delivery schedules: (ii) increases in the cost of fuel, power, material, supplies, or labor: and/or (iii) foreign or domestic legislation enacted by any level of government, including tax legislation, which increases the cost of producing, warehousing, or selling the Goods purchased hereunder. No discount will be allowed unless specifically set forth on the sales acknowledgement. Buyer agrees to pay a delinquency charge of 2% per month, or if such rate shall exceed the maximum rate allowed by applicable law, then a delinquency charge calculated at such maximum rate, on the outstanding balances not paid when due, from the date such balances were due until payment with respect thereof is made in full. Until the purchase prices and all other sums due pursuant hereto are paid in full, Seller retains a security interest in the Goods and in all proceeds of said Goods. Buyer shall execute financing statement(s) on request and irrevocably authorizes Seller to execute and file same.
3. WARRANTY. Seller warrants goods manufactured by it will be free from defects in material and workmanship for 3 months following upon the date of shipment unless agreed in writing by the Seller. If any of the Goods are found by Seller to be defective, Buyer’s sole and exclusive remedy and Seller’s sole and exclusive obligation shall be, at Seller’s option, replacement or repair of the goods. The parties hereto expressly agree that Buyer’s sole and exclusive remedy against the Seller shall be for the repair or replacement of defective Goods as provided herein. The exclusive remedy shall not be deemed to have failed of its essential purpose so long as the Seller is willing and able to repair or replace defective Goods in the prescribed manner.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. NO AFFIRMATION OF SELLER, BY WORDS OR ACTION, OTHER THAN AS SET FORTH IN THE SECTION, SHALL CONSTITUTE A WARRANTY, IN PARTICULAR, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING. IF THE GOODS ARE MANUFACTURED ACCORDING TO BUYER’S SPECIFICATIONS, SELLER DOES NOT WARRANT THE ADEQUACY OF SUCH SPECIFICATIONS OR THAT THE GOODS WILL PERFORM IN ACCORDANCE WITH SUCH SPECIFICATIONS. GOODS WHICH MAY BE SOLD BY SELLER BUT WHICH ARE NOT MANUFACTURED BY SELLER ARE NOT WARRANTED BY SELLER. THIS WARRANTY DOES NOT COVER LABOR OR OTHER COSTS OR EXPENSES TO REMOVE OR INSTALL ANY DEFECTIVE, REPAIRED OR REPLACED GOODS. SELLER’S WARRANTY DOES NOT APPLY TO ANY GOODS WHICH HAVE BEEN SUBJECTED TO MISUSE, MISHANDLING, MISAPPLICATION, NEGLECT (INCLUDING BUT NOT LIMITED TO IMPROPER MAINTENANCE), ACCIDENT, IMPROPER INSTALLATION, MODIFICATION (INCLUDING BUT NOT LIMITED TO USE OF UNAUTHORIZED PARTS OR ATTACHEMTNS), OR ADJUSTMENT OR REPAIR PERFORMED BY ANYONE OTHER THAN SELLER OR ONE OF SELLER’S AUTHORIZED AGENTS.
It is expressly understood that any technical advice furnished by Seller with respect to the use of its Goods is given without charge, and Seller assumes no obligation or liability for the advice given, or the results obtained, all such advice being given and accepted at Buyer’s risk.
This warranty is void in the event that repairs are made by anyone other than the Seller without prior authorization from Seller.
Any Claim by Buyer with reference to the Goods sold hereunder shall be deemed waived by the Buyer unless submitted in writing to Seller within thirty (30) days following Buyer’s receipt of the Goods. Any cause of action for breach of the foregoing warranty shall be brought within one year from the date of shipment.
4. LIMITATION OF LIABILITY. SELLER’S LIABILITY (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) FOR ITS GOODS SHALL BE LIMITED TO REPAIRING OR REPLACING GOODS FOUND BY SELLER TO BE DEFECTIVE, OR AT SELLER’S OPTION, TO REFUNDING THE PURCHASE PRICE OF SUCH OR PARTS THEREOF. AT SELLER’S REQUEST, BUYER WILL SEND AT BUYER’S SOLE EXPENSE, ANY ALLEGEDLY DEFECTIVE PARTS TO THE PLANT OF SELLER WHICH MANUFACTURED THEM.
5. DISCLAIMER OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL SELLER BE LIABLE FOR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION BREACH OF ANY OBLIGATION IMPOSED ON SELLER HEREUNDER OR IN CONNECTION HEREWITH. Consequential damages for purposes hereof shall include, without limitation, loss or use, income or profit, or losses sustained as the result of injury (including death) to any person, or loss of or damage to property (including without limitation property handled or processed by the use of the Goods). Buyer shall indemnify Seller against all liability, cost or expense which may be sustained by Seller on account of any such loss, damage or injury.
6. ACCEPTANCE AND TRANSPORTATION. Upon Buyer’s receipt of shipment, Buyer shall immediately inspect the Goods. Unless Buyer provides Seller with written notice of any claim for shortages of or defects in the Goods within forty-eight (48) hours after receipt of shipment, such Goods shall be deemed finally inspected, checked and accepted by Buyer.
7. TITLE AND RISK OF LOSS. Title to any Goods sold and risk of loss of such Goods passes to Buyer upon tender of delivery by Seller to carrier, and any claims for losses or damage shall be made by Buyer directly with carrier.
8. CREDIT TERMS. All orders and shipments shall at all times be subject to the approval of the Seller’s Credit Department. The Seller reserves the right of declining to make shipment whenever, for any reason, there is doubt as to Buyer’s financial responsibility and Seller shall not in such event be liable for breach or nonperformance of contract in whole or in part.
9. TAXES. Unless otherwise specifically provided on the face hereof, the price for the Goods purchased is net and does not include sales, use, excise or similar taxes, whether federal, state or local. The amount of any such taxes applicable to the Goods shall be paid by Buyer the same manner, and with the same effect as if originally included in the purchase price. If Seller pays any such taxes, Buyer shall immediately reimburse Seller therefore upon demand.
10. PACKAGING. Prices stated are based on Seller’s standard packaging. Packaging will be standard commercial package and acceptable to commercial carrier. Special customer packaging will be furnished only when specified and so stated herein, and the cost thereof shall be borne by the Buyer.
11. DELAYS. Unless expressly specified to the contrary, Goods in stock will be shipped immediately, and Goods not in stock will be shipped as soon as practicable. However, all shipping dates are approximate, and are based upon current availability of materials, present productions schedules, and prompt receipt of all necessary information. Seller will not be liable for any damage, loss, fault or expenses arising out of delays in shipment or other nonperformance of this Agreement caused by or imposed by: (a) strikes, fires, disasters, riots, acts of God, (b) acts of Buyer, (c) shortages of labor, fuel, power, materials, supplies, transportation, or manufacturing facilities, (d) governmental action, (e) subcontractor delay, or (f) any other cause or condition beyond Seller’s reasonable control. In the event of any such delay or nonperformance, Seller may at its option and without liability, cancel all or any portion of this Agreement and/or extend any date upon which any performance hereunder is due.
12. TERMINATION, CANCELLATION AND CHANGES. The contract resulting from this acknowledgment and acceptance of Buyer’s orders cannot be terminated, canceled or modified or shipment deferred after acceptance of Buyer’s order by Seller, except with Seller’s written consent and subject to conditions then agreed upon which shall indemnify Seller against liability and expense incurred and commitments made by Seller and which shall provide for profit on work in process and contract value of products or parts completed and ready for shipment.
13. PATENTED PROCESS. The purchase of the Goods does not entitle Buyer to employ the same with any patented process owned by Seller or others.
14. PATENT INFRINGEMENT. Buyer agrees to defend and indemnify Seller against any claims or liabilities for, or by reason of, the infringement of any United States Patent arising from the manufacture of any of the Goods in accordance with specifications furnished by Buyer or from the sale thereof.
15. ADDITIONAL CHARGES. If substitute or additional Goods, or repair parts are purchased by Buyer from Seller, the terms and conditions of this contract shall be applicable thereto, the same as if such substitute or additional Goods or repair parts had been originally purchased hereunder.
16. EQUAL EMPLOYMENT OPPORTUNITY. The Equal Opportunity clause, Section 202 of Executive Order 11246, as amended, relative to equal employment opportunities and implementing rules and regulations of the Secretary of Labor, is incorporated herein by specific reference.
17. GENERAL CONDITIONS. No agent, salesman or other party is authorized to bind Seller by any agreement, warranty, statement, promise or understanding not herein expressed.
The sale of Goods pursuant to this order shall be governed by the internal laws of the Commonwealth of Massachusetts without regard to principles of conflicts of law.
In addition to the rights and remedies conferred upon Seller by law, Seller shall not be required to proceed with the performance of any order contract. If Buyer is in default in the performance of any order or contract with Seller and in case of doubt as to Buyer’s financial responsibility, shipments under this order may be suspended or sent sight draft with bill of lading attached by Seller.
Any clerical errors are subject to correction.
No delay or omission by Seller in exercising any right remedy provided for herein shall constitute a waiver of such right or remedy and shall not be constituted as a bar to or a waiver of any such right or remedy on any future occasion.
This contract shall be binding upon and shall inure to the benefit of the successors and assigns of Buyer and Seller, provided, however, that Buyer may not assign or transfer this contract, in whole or in part, except upon prior written consent of Seller.
18. SEVERABILITY. All the terms and conditions expressed herein are severable. If any term or condition is held invalid or unenforceable, such validity or unenforceability shall not affect the validity or enforceability of any other terms and conditions hereof.
19. EXPORT CONTROL – Buyer agrees to conduct its operations under this Contract and perform all its responsibilities in full compliance with export and other foreign trade controls under any applicable United States (U.S.) laws restricting sales or transfers to other countries or parties of commodities, software, technology, or technical data. Any other provision of this Contract to the contrary notwithstanding, Buyer agrees that no commodities, software, technology, or technical data of U.S. origin or with U.S. origin content will be sold, exported, re-exported or transmitted except in full compliance with all applicable laws, including all relevant U.S. government requirements. In addition, Buyer shall comply with all applicable laws, including U.S. government requirements, governing the transfer of information and items to U.S. embargoed and sanctioned countries and denied and restricted parties. Any violation of this section, as determined solely by Seller, shall be deemed a material breach of this Contract.