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Terms
and Conditions of Sale
- Seller shall
not be responsible for failure or delay in delivery due to preference
given to orders of the United States Government, any instrumentality
thereof, or for national defense.
- Seller will not
be responsible for failure or delay, due to fires, strikes, breakdowns,
delay of carriers, limited production, or causes beyond its control,
or in any event, for consequential damages to Buyer for Seller's failure
or delay in delivery.
- It is agreed
that all goods manufactured under this order, and remaining on hand
at date, specified for delivery, shall, at the option of the Seller,
be shipped and invoiced without further notice.
- Orders accepted
are not subject to cancellation by Buyer without Seller's written
consent. Cancellation charges may apply.
- Any alterations
called for are to be at the expense of Buyer.
- LIMITED
WARRANTY OF REPAIR AND REPLACEMENT
Seller warrants that the product hereby purchased is, upon delivery,
free from defects in material and workmanship and that any such product
which is found to be defective in such workmanship or material will
be repaired or replaced by Seller; provided, however, that this warranty
applies only to equipment found to be so defective within a period
of 12 months after installation by buyer but not to exceed 18 months
after delivery by the seller. Seller shall not be obligated under
this warranty for alleged defects which examination discloses are
due to tampering, misuse, neglect, improper storage, and in any case
where products are disassembled by anyone other than authorized Seller's
representatives. EXCEPT FOR THE LIMITED WARRANTY OF REPAIR AND
REPLACEMENT STATED ABOVE, SELLER DISCLAIMS ALL WARRANTIES WHATSOEVER
WITH RESPECT TO THE PRODUCT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR ANY PARTICULAR PURPOSE.
- LIABILITY
TO LIMITATION
SELLER'S LIABILITY TO BUYER FOR ANY LOSS OR CLAIM, INCLUDING LIABILITY
INCURRED IN CONNECTION WITH (I) BREACH OF ANY WARRANTY WHATSOEVER
EXPRESSED OR IMPLIED, (II) A BREACH OF CONTRACT, (III) A NEGLIGENT
ACT OR ACTS (OR NEGLIGENT FAILURE TO ACT) COMMITTED BY SELLER, OR
(IV) AN ACT FOR WHICH STRICT LIABILITY WILL BE IMPUTED TO SELLER,
IS LIMITED TO THE LIMITED WARRANTY OF REPAIR AND REPLACEMENT STATED
HEREIN. IN NO EVENT SHALL THE SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL OR OTHER DAMAGES OF A LIKE GENERAL NATURE, INCLUDING,
WITHOUT LIMITATION, LOSS OF PROFITS OR PRODUCTION, OR LOSS OR EXPENSES
OF ANY NATURE INCURRED BY THE BUYER OR ANY THIRD PARTY.
- Advice by Seller
regarding designs or wordings on wrappers, cartons, labels or other
materials sold to Buyer, which relate to products of Buyer, shall
not impose any liability on Seller or relieve Buyer of any duty, under
contracts, laws, or regulations relating to products of Buyers.
- All shipments
made thereunder shall, at all times, be subject to the approval of
Seller's Credit Department, and if the financial responsibility of
the Buyer becomes impaired or unsatisfactory to Seller, or if Buyer
fails to make payment in accordance with the aforesaid terms, then
in any such event, Seller may defer or decline to make any shipments
thereunder except upon receipt of satisfactory security or cash payments
in advance.
- QUANTITY PRICING/MINIMUM
SHIPPING QUANTITIES
Quantity prices apply to a single firm order, released in accordance
with the minimum shipping quantities specified. When releases are
less than those specified, price will be determined by the quantity
released. To earn quantity prices, a definite release schedule must
accompany order. Quantity prices apply only on an order scheduled
for completion within six months from date of acceptance of order.
Any order scheduled beyond six months is subject to price negotiation.
No ordered quantity may be reduced without repricing considerations.
- All order reschedules
are subject to the approval of the Seller.
- Seller reserves
the right to make partial shipments other than stated above for good
and valid reasons.
- No orders will
be accepted on a "Manufacture and Hold" basis.
- No merchandise
may be returned without permission. All authorized returns must be
prepaid.
- TAXES
Prices do not include State or Local taxes based on or measured
by sales. Such tax or taxes where applicable will be added to the
prices, unless exemptions are supported with resale numbers on face
of order.
- LOST, DAMAGED
OR DELAYED SHIPMENTS
Special care is exercised in packing for shipment; however, the
Seller assumes no responsibility for delay, breakage, or damage after
making delivery in good condition to the carrier. All claims for breakage
and damage should be made directly to the carrier. The Seller will
be glad to render all possible assistance in securing satisfactory
adjustments to such claims.
- SHIPPING
All shipments are made F.O.B., our plant, Milford, Connecticut. All
shipments except Parcel Post and United Parcel Service are sent collect.
Postage and UPS charges are added to invoice.
- SHORTAGE
Any claim for shortage or any other cause must be reported to Seller
within thirty (30) days of receipt of products.
- COUNTEROFFERS
If the terms and conditions of this acknowledgment differ in any way
from the terms and conditions of Buyer's order, this acknowledgment
will be construed as a COUNTEROFFER and will not be effective as an
acceptance of Buyer's terms and conditions which conflict herewith.
The terms and conditions contained herein will be the complete and
exclusive statement of the terms of the agreement between parties.
Buyer's acceptance of the goods sold thereunder will manifest Buyer's
assent to the terms and conditions hereof. No addition to or modification
of any of these terms and conditions will be effective unless made
in writing and signed by Seller.
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Terms
and Conditions of Purchase
- TERMS AND
CONDITIONS:
The terms and conditions contained herein and on the reverse side
hereof and any other terms and conditions of Buyer attached hereto,
if any, contain all of the terms and conditions of the purchase and
sale between Seller and Buyer, such terms and conditions being intended
as a final expression and complete and exclusive statement of the
terms of the purchase and sale, and any additional or different terms
which may be contained in any documents furnished by Seller are hereby
objected to. If this purchase order shall be deemed an acceptance
of an offer by Seller, such acceptance is expressly made conditional
upon Seller's assent to any additional or different terms and conditions
contained herein. Seller's commencement of work on or shipment of
the goods referred to herein shall be deemed an effective mode of
acceptance of the terms and conditions contained in this purchase
order. Buyer may withdraw this order at any time before acceptance
by Seller. This order is non-assignable in whole or in part by Seller.
- CHANGES BY
BUYER:
Buyer at any time before Seller's shipment of material or commencement
of performance may change any of the specifications, terms or conditions
of purchase by written notice, signed by an authorized representative
of Buyer and given to Seller in the manner herein provided, and any
such changes are hereby expressly incorporated in the terms and conditions
of this order. Notwithstanding such changes or any other reason presented
by Seller, no adjustment shall be made to the price stated herein
except by written instrument signed by Buyer prior to shipment or
commencement referring specifically to this order and the price stated
herein. Nothing contained in this paragraph shall relieve Seller from
proceeding without delay in the performance of this order as changed.
- SHIPMENT AND
TIME OF PERFORMANCE:
TIME IS OF THE ESSENCE IN THIS ORDER. If delivery in accordance with
this order is not made within the time specified herein, Buyer may,
in addition to any other remedy provided herein or by law, cancel
this order or such part of it as has not been completed and delivered
by Seller, without liability therefore to Seller, and Buyer may procure
such undelivered items from any other source of its own choosing and
charge Seller (or set off in whole or in part against any sums payable
to Seller under this order or otherwise) the amount by which all costs
and expenses of such procurement, when added to any sums paid or payable
thereunder for delivered items, exceed the total price. Undue delay
by Seller in making shipment shall give Buyer the right to require
Seller to expedite by faster freight and to pay the difference in
the higher rate for shipment. Seller shall comply with routing or
shipping instructions contained herein or otherwise contained in written
notice sent to Seller in accordance herewith. All merchandise shipped
by Seller shall be labeled, packaged and shipped, and shipping containers
shall be marked, in accordance with the shipping instructions and
directions set forth in this order or, in the absence of specific
instructions and directions set forth herein, in recognized standard
containers conforming to carriers specifications, and packaged to
secure the lowest transportation cost reasonably practicable, having
due regard for the nature of the goods and the hazards of transportation.
No charge will be allowed for handling, packaging, crating, storage,
transportation, insurance in transit or any other service unless expressly
stated herein. Orders are to be shipped complete. Delivery must be
in the exact quantity ordered except that this contract shall be several
and the items delivered in lots at the option of Buyer. Seller will
have full responsibility (i) for risk of loss until delivery conforming
to contract on the date and at the location specified on the face
of this order, (ii) for damages arising from loss or default, and
(iii) for risk of loss of or damage to rejected materials or parts
thereof.
- INSPECTION,
REJECTION AND RETURN:
Payment for materials covered by this order shall not constitute an
acceptance thereof, and all materials are subject to inspection and
return by Buyer. Failure of Buyer to inspect and accept or reject
materials shall not relieve Seller from responsibility for defective
or nonconforming materials, nor constitute a waiver of, or adversely
affect any of Buyer's rights or remedies thereunder. Buyer may reject
and receive full credit for any materials which are not as warranted,
which are defective as to material, workmanship, quality or otherwise,
or which are not in conformity with any specifications, drawings,
samples or descriptions approved by Buyer. Buyer may, in its discretion
and at Seller's risk and expense, either return such materials or
hold same. In addition to all legal remedies available, Buyer shall
have the right to require Seller to repair or replace, at Seller's
cost and expense, and in a manner satisfactory to Buyer, any materials
found to be defective or not as warranted within one (1) year from
date of delivery, or completion of installation, or initial use of
operation, whichever case is latest, including materials damaged because
of unsatisfactory packing or packaging by Seller, provided that no
replacement of such materials shall be made unless specified by Buyer.
Seller will be notified of rejected materials and such materials will
be returned to Seller COLLECT.
- PRICES AND
TAXES:
Seller agrees that the per unit price or total price set forth on
the face of this order is firm, not subject to increase, and includes
all applicable Federal, State, municipal or other sales, use, value-added,
import, export or other excise taxes, if any, on materials covered
herein. If no price is stated on the face of this order, the price
shall be deemed to be the price at which the items were last supplied
to Buyer by Seller, or the prevailing market price, whichever is lower.
Seller agrees that Buyer shall receive the full benefit of any reduction
in the price of any materials covered by this order if that reduction
is made subsequent to Seller's receipt of this order. If any tax is
included in the prices paid to Seller and is hereafter refunded to
Seller, Seller shall immediately pay Buyer the amount of such refund.
Seller warrants that the prices indicated on this order do not and
will not at the date of delivery of the materials specified herein
exceed Seller's price, or legitimate prices offered by competitors
of the Seller, to other customers for materials of like quantity and
quality; and Seller agrees that it will make all reductions in price
necessary to comply with said warranty and that Buyer may cancel any
unshipped portion of this order if Seller's prices are not so reduced
when necessary to comply with said warranty.
- TERMS OF PAYMENT:
Seller shall bill Buyer in accordance with Buyer's billing procedure
set forth herein or otherwise contained in written notice sent to
Seller in accordance herewith. All invoices for goods shipped or services
performed thereunder shall be marked conspicuously with the number
of this purchase order, shall be submitted in duplicate, on the day
of shipment, and shall be accompanied by all pertinent shipping receipts.
Following Seller's submission to Buyer of a proper invoice, Buyer
shall pay Seller the price specified in this order for articles delivered
and accepted or services rendered and accepted pursuant to the terms
and conditions set forth herein. Unless freight or other charges are
itemized, any discount will be taken out of the full amount of invoice.
- WARRANTY:
By accepting this Order, Seller warrants that the articles are free
from defects in materials, workmanship and fabrication, and that all
merchandise delivered shall be of the quality, quantity, size, description
and dimensions specified and shall be strictly in accordance with
Buyer's specifications, drawings, and approved sample, if any, and
suitable for the purpose designated. These warranties shall survive
acceptance and payment and shall run to Buyer, the successors, assigns,
customers and the user of its products and shall not be deemed to be exclusive.
- INDEMNIFICATION:
Seller agrees to protect, defend, hold harmless and indemnify Buyer
from and against any and all liability, loss, damages and claims,
whether based upon contract, breach of warranty, negligence or otherwise,
and related costs, attorneys fees, and expenses at any time arising
out of or resulting from (a) the nature of, or any defect or alleged
defect in the materials furnished thereunder, or any part or components
thereof, (b) the allegedly improper or faulty construction, design,
testing or inspection of such materials, (c) failure of Seller to
timely inform and/or warn Buyer, its employees, agents, customers,
users of the materials, or any other persons affected thereby of any
defects or hazards in the materials or the handling of use thereof,
of which defects or hazards Seller has, or by the exercise of reasonable
diligence should have knowledge, (d) failure of the materials to comply
with specifications or with any express or implied warranties of Seller,
(e) alleged or actual violation by such materials, or in the manufacture
or sale thereof of any applicable law, rule, regulation or requirement
of any governmental authority having jurisdiction, (f) any contract,
law, rule, regulation or requirement mandating payment to Seller's
employees or to Workmen's Compensation or other funds for work and
services performed or for injuries sustained, occupational diseases
incurred or death resulting to Seller's employees arising out of or
in the course of their employment in the performance of work provided
by this order and (g) any actual, alleged or threatened breach of
any representation, warranty, agreement or guarantee set forth herein.
Seller shall maintain such public liability insurance, including products
liability, completed operations, contractors' liability and protective
liability, automobile liability insurance, and workmen's compensation
and employer's liability insurance as will adequately protect Buyer
against such liability, loss, damage and claims. Upon Buyer's request,
Seller agrees to submit certificates of insurance evidencing its insurance
coverage. The Seller agrees upon receipt of notice from Buyer promptly
to assume full responsibility for the defense of any suit or proceeding
which may be brought against Buyer or its agents for the alleged infringement
of any patent, trademark, copyright or right of others, as well as
for the alleged unfair competition resulting from such alleged infringement,
by reason of the use or sale of any goods furnished under this contract,
and Seller further agrees to indemnify Buyer against any and all liability,
loss, cost, damage or expense, including court costs and reasonable
attorneys' fees, suffered or incurred as a result of the bringing
of such suit or proceedings and any settlement thereof or decree of
judgment entered therein, Buyer may be represented by and actively
participate through its own counsel, at Seller's expense, in any such
suit or proceedings.
- CONFIDENTIAL
INFORMATION:
All patterns, designs, specifications, materials, supplies, and the
like, furnished or supplied by Buyer in connection with this order
shall be Buyer's property, used exclusively on Buyer's products, and
shall be treated as confidential by Seller and not disclosed to anyone
else. The obligations under this section shall survive the cancellation,
termination or completion of this purchase order and/or its performance.
- DEFAULT AND
TERMINATION:
Buyer may, by notice of default to Seller, terminate this order or
any part thereof without liability to Seller if Seller so fails to
make progress as to endanger performance of this order, or fails to
comply with any of the other provisions of this order and does not
cure such failure within a period of ten (10) days after notice from
Buyer's specifying such failure, or appears to be so insolvent or
in such financial condition as, in Buyer's reasonable opinion, to
endanger performance. In the event of such termination, Buyer may
purchase similar materials elsewhere but shall not be under an obligation
to do so and Seller shall be liable to Buyer for any excess costs
and expenses of Buyer, including without limiting the generality of
the foregoing any lost profits and liabilities to any person or entity
arising because of such default, and any costs, damages and expenses
incidental or consequential to or arising out of such default, whether
or not Buyer terminates this order or any part thereof. The retention
or acceptance of goods or performance after the occurrence of any
of the above events of default, or the termination of this order pursuant
to this paragraph, shall not waive or adversely affect any of Buyer's
rights or remedies, including rights of setoff or (where apposite)
the right of Buyer to cancel and terminate this order. Buyer may at
any time terminate this order in whole or in part for its convenience
upon written notice to Seller, in which event Seller shall be entitled
to reasonable termination charges consisting of a percentage of the
order price reflecting the percentage of the work performed prior
to such termination; provided, however, that any claim for such termination
charges shall be deemed waived unless asserted in writing within thirty
(30) days from such termination notice. Payment under this clause
will constitute Buyer's only liability in the event that this order
is terminated under this clause.
- SETOFF:
Any amounts chargeable to Seller or payable by Seller to Buyer under
the provisions of this order or in connection with the merchandise
referred to herein may at Buyer's election be set off in whole or
in part against any sums payable to Seller, whether arising under
this order or otherwise, and any amounts chargeable to Seller or payable
by Seller to Buyer, under any other order or in connection with any
other merchandise sold by Seller to Buyer or otherwise, may at Buyer's
election be set off in whole or part against any sums payable to Seller
under this order or in connection with the merchandise referred to
herein; and any such set off shall be without prejudice to any claims
of Buyer based on any loss, damages or expense not reflected in such
set off.
- REMEDIES:
All remedies of Buyer for breach of any obligation of Seller shall
be cumulative and not alternative, continuing and not exhausted by
any one or more uses thereof, and exercisable at any time or from
time to time, and in addition to all other rights and remedies available
at law or in equity, and any election by Buyer to exercise any right
or remedy may be changed, and any option of Buyer may be exercised
or changed, at any time or from time to time. A waiver of Buyer of
any of the terms or conditions of this order shall not be deemed to
be a continuing waiver but shall apply solely to the instance to which
the waiver is directed. NO ACTION SHALL BE BROUGHT BY SELLER FOR ANY
BREACH OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL
OF THE CAUSE OF ACTION THEREFORE.
- NOTICES:
Notices and instruments shall be deemed given and delivered to a party
when delivered or mailed first class, postage prepaid to the address
given for that party on the face hereof, except that either party
may from time to time by written notice to the other designate another
address which shall thereupon become the effective address of such
party.
- APPLICABLE
LAW:
The contract between Seller and Buyer shall be subject to, governed
by, and constructed in accordance with the laws of the State of Connecticut.
If the materials to be furnished under this order are to be used in
the performance of a US Government contract or subcontract and a Government
contract number shall appear on this order, those clauses of the applicable
orders and regulations which are required by federal law to be included
in Government contracts shall be deemed incorporated herein by reference.
- SEVERABILITY:
If any term or provision of this agreement, or the application thereof
to any circumstance, shall be invalid or unenforceable, the remainder
of this agreement, or the application thereof to any circumstances
other than those to which it is invalid or unforeseeable, shall not
be affected thereby, and each term and provision of this agreement
shall be valid and enforced to the fullest extent permitted by law.
- The Equal Employment
Opportunity Clause in Section 202 of Executive Order 11246 as amended,
relative to equal employment opportunity, and the implementing rules
and regulations of the Office of Federal Contracts Compliance are
incorporated herein by specific reference.
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