TERMS & CONDITIONS OF SALE

  1. THIS ACKNOWLEDGMENT AND ACCEPTANCE IS EXPRESSLY LIMITED TO AND MADE CONDITIONAL UPON THE TERMS AND CONDITIONS CONTAINED HEREIN AND ANY OF THE PURCHASER'S TERMS AND CONDITIONS WHICH ARE IN ADDITION TO OR DIFFERENT FROM THOSE CONTAINED HEREIN WHICH ARE NOT SEPARATELY AGREED TO IN WRITING (EXCEPT PROVISIONS SPECIFYING QUANTITY, CHARACTER OF THE PRODUCTS ORDERED, AND SHIPPING INSTRUCTIONS) ARE HEREBY REJECTED. OBJECTION TO ANY OF THE TERMS AND CONDITIONS STATED HEREIN SHALL BE DEEMED TO HAVE BEEN WAIVED IF WRITTEN NOTICE OF SUCH OBJECTION IS NOT RECEIVED BY THE COMPANY WITHIN TEN DAYS OF THE DATE OF THIS ACKNOWLEDGMENT. THE PURCHASER WILL IN ANY EVENT BE DEEMED TO HAVE ASSENTED TO ALL THE TERMS AND CONDITIONS CONTAINED HEREIN IF ANY PART OF THE PRODUCT IS ACCEPTED.
  2. WARRANTY: Seller's standard published warranties in effect at the time of shipment for the particular products shall apply. THESE WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTY OF MERCHANTABILITY. The liability of Seller (except as to title) arising out of the supplying of such products or their use, whether on warranties, negligence, or otherwise, shall not in any case exceed the cost of correcting defects as stated in the warranty. Upon expiration of the warranty period all such liability shall terminate and the foregoing shall constitute the sole remedy of the Purchaser and the exclusive liability of Seller. YOUR PRODUCT IS WARRANTED FOR ONE YEAR. IT WILL BE FREE FROM MATERIAL AND DESIGN DEFECTS PROVIDED THAT YOU PROPERLY STORE, HANDLE AND INSTALL THE MATERIAL.
  3. PATENTS: Seller shall defend any suit or proceeding brought against the Purchaser so far as based on a claim that any product, or any part thereof, furnished under this contract constitutes an infringement of any equipment patent of the United States, if notified promptly in writing and given authority, information, and assistance (at Seller's expense) for the defense of same and Seller shall pay damages and costs awarded therein against Purchaser. In case said product or any part thereof, is in such suit held to constitute infringement and the use of said product or part is enjoined, Seller shall at its own expense and at its option, either procure for the Purchaser the right to continue using said product or part; or replace same with noninfringing comparable products; or modify it so it becomes noninfringing; or remove said product or part and refund the purchase price and the transportation and installation costs thereof. The foregoing states the entire liability of Seller for patent equipment infringement by said product or part thereof. Notwithstanding the foregoing provisions, the Purchaser shall hold Seller harmless against any expense or loss resulting from infringement of patents or trademarks arising from compliance with Purchaser's designs or specifications or instructions and/or for any process infringement.
  4. DELIVERY: Shipping dates are approximate and are based upon prompt receipt of all necessary information. Seller shall not be liable for delays in delivery or failure to manufacture or deliver or any other failure to perform (a) due to causes beyond its reasonable control; (b) due to acts of God, acts of the Purchaser, acts of civil or military authority, fires, strikes, floods, epidemics, earthquakes, quarantine, restrictions, war, riot, delays in transportation or car shortages; (c) due to inability due to causes beyond its reasonable control to obtain necessary labor, materials, components or manufacturing facilities; or (d) due to any other commercial impracticability. In the event of any such delay, the date of delivery shall be deferred for a period equal to the time lost by reason of the delay.
  5. TRANSPORTATION/RECEIPT: Delivery is complete when Seller releases the products to Purchaser's forwarder. Purchaser is responsible for insurance and transportation at the time of release. Notification of shortages or damages must be made in writing within fifteen days of receipt or failure to so notify will be considered conclusive proof that the products were delivered in good condition and in the specified amounts. Any returns based on shortages or damages need pre-approval as evidenced in an RMA (Return Material Authorization).
  6. TAXES: Seller's prices do not include sales, use, excise or similar taxes. Consequently in addition to the price specified herein, the amount of any present or future sales, use, excise, or other tax applicable to the sale or use of the products sold hereunder shall be paid by the Purchaser, or in lieu thereof the Purchaser shall provide Seller with a tax-exemption certificate acceptable to the taxing authorities.
  7. SECURITY TITLE: Title and Right of Possession to the products sold hereunder shall remain with Seller until all payments hereunder shall have been made in full in cash, and the Purchaser agrees to do all acts necessary to perfect and maintain such security right and title in Seller.
  8. INSURANCE. Purchaser accepts full responsibility for safeguarding the product until it is paid for in full. Until the contract price is paid in full, Purchaser shall provide and maintain insurance to the total value of the product delivered hereunder against all risks of damage, fire and explosion in the names of Purchaser and Seller, as their respective interests may appear, and shall also provide and maintain such insurance to the above value against flood, earthquake, windstorm, cyclone, tornado, hurricanes, riot and strike and civil commotion. Purchaser shall provide a Certificate of Insurance reflecting such coverage upon the request of Seller.
  9. CANCELLATION: Custom-made or designed products are not subject to cancellation. All other purported cancellations are void unless expressly consented to by Seller in a signed writing.
  10. PURCHASE PRICE: Unless otherwise agreed upon in writing by Seller, prices, terms of payment and pricing policies will be those set forth in Seller's published price lists and pricing policies in effect at the time of shipment A finance charge computed at the periodic rate of 1.5% simple interest per calendar month (i.e., to produce an approximate effective Annual Percentage Rate of 18% on the unpaid principal balance) may be imposed upon Purchaser's account balance that is outstanding after 30 days. However, if such interest is not imposed on Purchaser's account within the previously stated timeframe, Seller reserves the right to retroactively impose such interest on the account balance
  11. COMPLIANCE WITH ALL APPLICABLE LAWS: Buyer shall comply with all laws regarding any manufacture, sale and dissemination of product including but not limited to child labor laws non-discrimination and all export control laws including but not limited to EAR, FARS, ITAR and the FCPA further Buyer shall refrain from engaging in any illegal, unethical, or deceptive practices. Buyer shall supply certificates of compliance upon request.
  12. LIMITATION OF LIABILITY: Seller's liability for any claim of any kind, whether arising out of contract or tort, including negligence and breach of warranty, for any loss or change resulting from, arising out of, or connected with this Contract, or from the performance or breach thereof, or from the manufacture, sale, delivery, resale, repair or use of any product covered by or furnished under this Contract shall in no case exceed the price allocable to the product or part thereof which gives rise to the claim, except as provided in the paragraph entitled "Patents." IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR CHARACTER. SELLER'S AGGREGATE RESPONSIBILITY AND LIABILITY, WHETHER ARISING OUT OF CONTRACT OR TORT OR ANY OTHER LEGAL CONTEXT OR THEORY, INCLUDING NEGLIGENCE AND STRICT LIABILITY, INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR BREACH OF ANY WARRANTY OR GUARANTEE, FAILURE OF PERFORMANCE OR DELAY OR PERFORMANCE OR NON-PERFORMANCE OF THE PURCHASED PRODUCT SHALL NOT EXCEED THE CONTRACT PRICE FOR THE PURCHASED PRODUCT; PROVIDED, HOWEVER, THAT THIS LIMITATION WILL NOT APPLY TO ANY LIABILITY OF SELLER FOR DIRECT DAMAGES CLAIMED BY PURCHASER FOR PHYSICAL DAMAGE TO PURCHASER'S PROPERTY OR FOR DIRECT DAMAGES CLAIMED BY THIRD PARTIES FOR SUCH THIRD PARTIES' PERSONAL INJURY OR PROPERTY DAMAGE FOR WHICH SELLER IS LIABLE TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR WILLFUL MISCONDUCT OF THE SELLER, FOR ALL OF WHICH MATTERS SELLER SHALL BE LIABLE UP TO AN AMOUNT OF $3,000,000 IN THE AGGREGATE,
  13. NONASSIGNMENT-Any assignment of this order, or of any rights or obligations hereunder, by the Purchaser or Seller, without the written consent of the other party shall be void. except that a party may assign this Agreement without such consent to its successor in interest by way of merger, acquisition or sale of all or substantially all of its assets.
  14. APPLICABLE LAW AND JURISDICTION: This agreement and matters connected with the performance thereof shall be construed, interpreted, applied and governed in all respects by the laws of the State of New Jersey, without regard to its conflicts of laws provisions. The United Nations Convention on the International Sale of Goods is expressly excluded and shall not apply. With respect to any action, suit, or proceeding relating to this order or arising in connection with the transactions contemplated hereby, Purchaser and Seller irrevocably (a) submit to the jurisdiction of the Federal and State courts of the State of New Jersey, (b) agree to file and bring such action, suit, or proceeding exclusively in the United States District Court for the District of New Jersey located in Newark, New Jersey or in the State courts of New Jersey located in the County of Union (c) waive any objection which it or they may have at any time to the laying of venue of any action, suit, or proceeding in any such court, (d) waive any claim that any such action, suit, or proceeding has been brought in an inconvenient forum, and (e) waive the right to object that such court does not have jurisdiction over the parties
  15. THIS AGREEMENT: This Agreement contains the entire and only agreement between the parties regarding the subject matter contained herein and no change, modification, rescission, abandonment or waiver of these standard conditions of sale shall be binding upon Seller unless made in writing and signed on its behalf by a Vice President or above of Seller. No course of prior dealings, promise or condition in connection therewith or usage of the trade not incorporated herein shall be binding on either party.


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