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Terms and Conditions of Sale
TOPICS
The terms and conditions of sale contained herein apply to all products purchased through Seller’s On-Line Ordering system, quotations made, and purchase orders entered into by Seller. They supersede and replace any terms and conditions attached to Buyer’s order, and Seller’s acceptance is expressly conditioned upon their acceptance by Buyer. No waiver, alteration, or modification of any of the provisions hereof shall be binding on Seller unless it is in writing and signed by a duly authorized representative of Seller. Any provision in any purchase order, quotation, acknowledgment or other forms or contract documents applicable to the sale of Seller’s goods which are inconsistent, or in conflict, with any of the provisions herein will be deemed inapplicable to this order unless agreed to in writing by Seller.
All on-line orders,
purchase orders or contracts must be accepted in writing by the Seller at its office in Oak Ridge, Tennessee. Seller will send an e-mail confirming its acceptance of an on-line order and will send an order acknowledgement by mail to confirm acceptance of all orders. The validity of this order, as well as its interpretation, operation, and effect shall be determined exclusively by the laws of the State of Tennessee.Seller’s prices are F.O.B. Seller’s plant, Oak Ridge, Tennessee, and are exclusive of any applicable U.S.A. federal, state, or local sales, use, excise, or other taxes (excluding taxes based solely on Seller’s income). All such taxes shall be for Buyer’s account and paid by Buyer. In lieu thereof, the Buyer may provide Seller with a tax exemption certificate in a form satisfactory to Seller and acceptable to the applicable taxing authorities. Any taxes (including stamp, and turnover taxes), duties, fees, charges, or assessments of any nature levied by any governmental authority other than the United States of America in connection with this transaction, whether levied against Buyer, against Seller or its employees, or against any of Seller’s subcontractors or their employees, or otherwise, shall be for Buyer’s account and shall be paid directly by Buyer to the governmental authority concerned. If Seller is required by law or otherwise to pay any such levy and/or fines, penalties, or assessments, either in the first instance or as a result of Buyer’s failure to comply with any applicable laws or regulations governing the payment of such levies by Buyer, the amount of any payments so made by Seller shall be reimbursed by Buyer to Seller upon submission of Seller’s invoice.
Should these Terms and Conditions of Sale accompany a quotation, the prices therein will be valid for thirty (30) days from the date of the quotation unless another period of time is specified in such quotation.
Buyer shall have no right to cancel this order unless such cancellation is with the prior written consent of the Seller and is upon terms acceptable to Seller.
If Buyer pays using a credit card, Buyer’s order is subject to approval of the bank or other financial institution that issued Buyer’s card. Seller will not be liable if the bank refuses to approve Buyer’s purchase or refuses to accept or honor Buyer’s credit card. If Buyer’s card and purchase are accepted and approved, Buyer agrees to pay its obligations to its credit card issuer as required under the terms of Buyer’s agreement with the issuer.
Invoices shall accompany all shipments of non-credit card orders and are due and payable net thirty (30) days from their date. Buyer’s failure to make any payment due under the terms of this order shall constitute a material breach. Interest shall be due on any amount not paid when due. The interest shall be calculated at the lesser of one percent (1%) per month or maximum interest rate permitted by applicable law.
Notwithstanding the above, if at any time in Seller’s judgment Buyer’s financial condition does not justify the continuation of production or shipment of goods, on the terms of payment originally specified, Seller may require full or partial payment in advance. In the event of Buyer’s bankruptcy or insolvency, or if any proceeding is brought against the Buyer under the bankruptcy or insolvency laws, Seller shall be entitled to cancel any order then outstanding and shall receive reimbursement for its cancellation charges, which include but are not limited to all costs, direct and indirect, for labor, materials, tools, overhead, and profit to which Seller would be entitled had the order not been canceled.
The Buyer shall have no right to delay the manufacture or shipment of goods without the prior written consent of the Seller. If Seller should agree to such delay at the request of Buyer, payments for finished goods shall be due on the date when Seller is prepared to make shipment, and payment for work-in-process shall be due upon commencement of the delay. Goods and work-in-process held for Buyer shall be at the risk and expense of the Buyer.
Each shipment shall be considered a separate and independent transaction, and payment therefor shall be made accordingly. Buyer grants Seller a purchase money security interest in all goods under this order until such time as the full purchase price is paid.
Unless otherwise specified in this order, delivery shall be F.O.B. Seller’s plant, Oak Ridge, Tennessee. The method of shipment and carrier shall be selected by Seller unless Buyer specifies in writing a method of shipment and carrier at least ten (10) days prior to shipment.
Seller will ship to Buyer addresses as indicated on this order. Seller is unable to ship to APO and FPO boxes. Seller will not ship to Post Office boxes. Seller will set all power setting to U.S.A standards.
Buyer acknowledges that products purchased through the On-Line Ordering are subject to United States export control laws and regulations. Buyer agrees to comply with all such laws and regulations. Buyer shall not make any disposition, by way of trans-shipment, re-export, diversion or otherwise, of U.S. origin goods purchased from Seller except as said laws and regulations expressly permit
If this order provides for installation by Seller, Buyer will, upon notice from Seller, provide at Buyer’s cost, facilities for such installation which facilities will comply with all governmental laws, codes, regulations, orders, and with all agreements and understanding with labor unions.
Upon receipt of the goods shipped hereunder, Buyer shall inspect them immediately and shall within five (5) days give Seller written notice of any claim that the goods do not conform with the terms of the order. Should Buyer fail to give such notice, it shall be deemed to have accepted the goods and shall be bound to pay for them. Buyer expressly waives any rights it may have to revoke acceptance after such five (5) days.
Seller shall not be liable for delays in delivery or failure to manufacture or deliver goods due to acts of God, acts of the Buyer, acts of civil or military authority, fires, strikes, floods, epidemics, war, riot, delays in transportation or other causes beyond Seller’s reasonable control including, but not limited to, obtaining necessary labor, materials, components, or manufacturing facilities.
If the goods to be delivered hereunder are to be produced according to Buyer’s specifications, Buyer shall indemnify Seller against, and hold it harmless from, all judgments, decrees, costs and expenses including reasonable attorneys’
fees resulting from any alleged infringements of any United States or foreign patents.If this order calls for delivery of Seller’s standard catalog products, without modification, Seller shall assume the defense of any suit brought against Buyer for infringement of any United States patent arising solely from use and/or sale of said standard catalog products and shall indemnify Buyer against any money damages and/or costs awarded in such suit provided: (1) that Seller is given exclusive control of the defense of such suit and all negotiations relative to the settlement thereof and, (2) that Buyer promptly informs Seller in writing of any claim with respect to which Seller is to assume responsibility hereunder. If a product (or any part thereof) is (or in the opinion of Seller) may become, the subject of any claim, suit or proceeding for infringement of any patent, or if it is determined that a product (or any part thereof) is infringing and, as a result, its use is enjoined, then Seller may, at its option and expense: (i) procure for Buyer the right under such patent to distribute such product (or such part thereof) without prejudice to Seller's obligations above; or (ii) replace such product (or part thereof) with other suitable parts; or (iii) suitably modify such product (or part thereof) to make it non-infringing without modifying its capability; or (iv) if the use of a product (or part thereof) is prevented by injunction, remove such product (or part thereof) and refund the aggregate payment paid therefor by Buyer less an amount to account for actual use by Buyer, as measured over a thirty-six (36) month life span.The foregoing states the entire liability of Seller for patent infringement.
Seller will provide commercial packaging adequate, under normal conditions, to protect the goods in shipment and to identify the contents. Special packaging requested by Buyer will be at Buyer’s expense.
DESIGNS, SPECIFICATIONS, MATERIAL FURNISHED BY BUYER
Seller assumes no responsibility for the performance of products manufactured to Buyer’s design or specifications, nor for defects in raw material, parts, or subassemblies furnished by the Buyer, its agents or suppliers.
Seller warrants that goods delivered hereunder will, at delivery, be free from defects in materials and workmanship and will conform to Seller’s operating specifications. Seller makes no other warranties, express or implied, and specifically makes NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Seller’s obligation under the warranty in the section above shall be limited to replacing or repairing, at Seller’s option, the defective goods within the time period established in Seller’s current published Price List which applies to
the goods ordered hereunder, or one year from the date of shipment, whichever is earlier, provided that Buyer gives Seller prompt notice of any defect or failure and satisfactory proof thereof. Defective goods must be returned to Seller’s plant or to a designated Seller’s service center for inspection. Buyer will prepay all freight charges to return any products to Seller’s plant, or other facility designated by Seller. Seller will deliver replacements for defective goods to Buyer freight prepaid. Goods returned to Seller for which Seller provides replacement under the above warranty shall become the property of Seller.This limited warranty does not apply to performance problems caused by abrasive materials, corrosion due to aggressive fluids, lightning, improper voltage supply, mishandling or misapplication. Seller’s warranty obligations shall not apply to any goods which (a) are normally consumed in operation, or (b) have a normal life inherently shorter than the warranty period stated herein.
In the event that the goods are altered or repaired by the Buyer without prior written approval by the Seller, all warranties are void. Equipment and accessories not manufactured by Seller are warranted only to the extent of and by the original manufacturer’s warranty. Repair or replacement goods furnished pursuant to the above warranty shall remain under warranty only for the unexpired portion of the original warranty period.
Should Seller fail to manufacture or deliver goods other than standard products appearing in Seller’s catalog, Seller’s exclusive liability and Buyer’s exclusive remedy shall be release of the Buyer from the obligation to pay the purchase price therefor.
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. IMPLIED WARRANTIES OF FITNESS AND MERCHANTABILITY SHALL NOT APPLY. SELLER’S WARRANTY OBLIGATIONS AND BUYER’S REMEDIES THEREUNDER (EXCEPT AS TO TITLE) ARE SOLELY AND EXCLUSIVELY AS STATED HEREIN. IN NO CASE WILL SELLER BE LIABLE FOR SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES.
The total liability of Seller (including its subcontractors) on any claim arising out of, connected with, or resulting from the manufacture, sale, delivery, resale, repair, replacement or use of any goods, or the furnishing of any service hereunder, shall not exceed the price allocable to the product or service or part thereof which gives rise to the claim.
Except as may be otherwise expressly provided herein, the provisions of this order are for the benefit of the parties hereto and not for that of any other party. Any assignment by Buyer of any rights hereunder without the prior written consent of Seller shall be void.
Except as may be otherwise specified on the face hereof, no Data, as that term is defined in Part 2, Section 9 of the Defense Acquisition Regulation shall be provided hereunder. If Data is provided, it shall be deemed to pertain to items, components, or processes developed at Seller’s private expense and no rights in such Data or in any inventions, patents, or copyrights shall accrue to Buyer. If Data is furnished by Buyer, no rights therein will pass to Seller provided, however, that Seller may copy and use such Data to the extent necessary to furnish the goods called for by this order.
If any term or condition of this order should be declared invalid by any competent court of law, it shall be considered deleted from this order. All other terms and conditions hereof shall remain in full force and effect.
Any dispute arising under this order which is not resolved by the parties within ninety (90) days from the date one party gives notice to the other party of the existence of such dispute, shall be referred to the American Arbitration Association in the City of Knoxville, Tennessee, which Association’s decision shall be binding upon the parties. Each party shall bear its own costs in such arbitration proceeding.
Buyer shall be responsible for obtaining in a timely manner all required government authorizations, including without limitation, any Export License, Import License, Exchange Permit, or other governmental authorization, even though any such authorization may be applied for by Seller on Buyer’s behalf
. Buyer and Seller shall assist each other, to the extent reasonably possible, to secure such required authorizations. Seller shall not be liable if any authorization is delayed, denied, revoked, restricted, or not renewed and Buyer shall not be relieved thereby of its obligations to pay Seller for the goods called for by this order.
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