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INFRAMAT®
ADVANCED MATERIALS LLC
STANDARD TERMS AND CONDITIONS
1.
SALES CONTRACT AND LIMITATIONS: The entire agreement between
Buyer and Inframat® Advanced Materials LLC (the “Seller”)
(this agreement is herein called the “Sales Contract”) with
respect to the goods and/or services described in Seller’s proposal
or acknowledgment, as the case may be, shall consist of the terms and
conditions appearing herein and in Seller’s proposal or acknowledgment
(such terms being additions to or modifications of Seller’s terms
mutually agreed upon in writing by Seller and Buyer) (collectively,
“Terms”). Buyer’s right to accept any offer from Seller,
or acceptance by Seller of any offer from Buyer is made expressly conditional
on Buyer’s assent to any of Seller’s Terms which are additional
to and/or different from any terms contained in Buyer’s request
for proposal, Buyer’s purchase order, or any other communication
from Buyer to Seller. Acceptance by Buyer of any offer from Seller is
also expressly limited to Seller’s Terms, and Seller hereby objects
to and shall not be bound by any additional, different or conflicting
terms, whether printed or otherwise, in Buyer’s request for proposal,
Buyer’s purchase order, or in any other communication from Buyer
to Seller, it being understood that Seller’s Terms shall prevail
notwithstanding any such additional, different or conflicting terms.
In the event of any conflict between the terms appearing herein and
the terms appearing in Seller’s proposal or acknowledgment, the
terms appearing in the latter shall prevail. In the event of any conflict
between the terms appearing in Seller’s proposal and the terms
appearing in Seller’s acknowledgment, the latter shall prevail.
No modification or waiver of Seller’s Terms is valid, unless confirmed
in writing by an authorized representative of Seller. The Sales Contract
shall only be for the benefit of Buyer and Seller, and not for the benefit
of any other person, except as otherwise provided herein with respect
to Seller’s agents and subcontractors, if any.
2. CANCELLATION: Buyer may not cancel this order, or
any portion thereof, or reschedule or change any order, or portion thereof,
without Seller’s prior written consent. Seller shall be entitled
to retain as liquidated damages any prepayment or deposit made by Buyer
if Buyer attempts to cancel this order or otherwise does not perform
and Buyer agrees that such liquidated damages are reasonable.
3. PRICE AND PAYMENT: Terms of payment are cash upon
delivery or, at Seller’s option, net 30 days from date of invoice
or such other terms as are agreed between Buyer and Seller. If Seller
offers payment terms to Buyer, a finance charge of 1½% per month
will be assessed on any amounts outstanding beyond the agreed-upon payment
terms. If the Sales Contract is for more than one unit of goods, the
goods may be shipped in a single lot, or in several lots, with the agreement
of the Buyer, and each such shipment shall be paid for separately. Pro
rata payments shall become due as shipments are made. Seller may require,
in advance of shipment, full or partial payment or payment guarantee,
whenever, in its opinion, the financial condition of Buyer so warrants
or in the event of international transactions. In the event of Buyer’s
bankruptcy or insolvency, or in the event any proceeding is brought
against Buyer, voluntarily or involuntarily, under the bankruptcy or
insolvency laws, Seller may cancel any order then outstanding at any
time during the period allowed for filing claims against the insolvency
estate, and shall retain as liquidated damages any prepayment or deposit
previously paid by Buyer. If Seller consents to a delay in delivery
requested by Buyer, payment shall become due on the date when Seller
is prepared to make shipment, and goods held for Buyer after such date
shall be held at the risk and expense of Buyer.
4. TAXES: Prices are exclusive of all federal, state,
or local property, license privilege, sales, use, excise, value added,
and other taxes and governmental charges, which may now or hereafter
be applicable to, measured by, or imposed upon or with respect to the
transaction, the goods and/or services furnished under the Sales Contract,
their sale, value or use, and Buyer shall be responsible for all such
taxes and charges in addition to the price of the goods and/or services
and shall reimburse Seller when such tax is payable by Seller, unless
evidence of tax exemption acceptable to the taxing authorities is furnished
by Buyer.
5. DELIVERY: Promises of delivery from stock are subject
to prior sale. Delivery dates are not guaranteed, but are estimated
on the basis of immediate receipt by Seller of all information and approvals
to be furnished by Buyer and the absence of delays which are excused
under Section 9 (Delays). Seller shall endeavor in good faith to meet
estimated delivery dates.
6. TITLE AND RISK OF LOSS:
A. Title to and risk of loss for Domestic U.S. shipments shall pass
to Buyer F.O.B. point of shipment.
B. Title to and risk of loss for Non-Domestic U.S. shipments shall pass
to Buyer D.A.F. named place, or such other place as Buyer and Seller
shall agree in writing.
7. LIMITATION OF WARRANTIES: NOTWITHSTANDING ANY OTHER
PROVISION TO THE CONTRARY CONTAINED IN THE SALES CONTRACT:
THE EXPRESS WARRANTIES SPECIFICALLY SET FORTH HEREIN ARE THE ONLY WARRANTIES
THAT APPLY TO THE GOODS AND/OR SERVICES FURNISHED UNDER THE SALES CONTRACT
AND NO OTHER WARRANTIES WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS, IMPLIED
(INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE) OR OTHERWISE, SHALL APPLY. UNLESS
OTHERWISE PROVIDED IN SELLER’S PROPOSAL OR ACKNOWLEDGMENT, ANY
SPECIFICATIONS ATTACHED TO OR FURNISHED WITH GOODS SOLD UNDER THE SALES
CONTRACT ARE DESCRIPTIVE AND ARE NOT INTENDED AS WARRANTIES.
8. LIMITATION OF REMEDIES AND LIMITATION OF LIABILITY: NOTWITHSTANDING ANY OTHER PROVISION TO THE CONTRARY CONTAINED IN THE
SALES CONTRACT:
A. EXCEPT AS SET FORTH IN SECTION 10 (PATENTS), FOLLOWING DELIVERY OF
THE GOODS AND/OR PERFORMANCE OF THE SERVICES COVERED BY THE SALES CONTRACT,
THE REMEDIES SPECIFIED IN THE WARRANTIES SET FORTH HEREIN SHALL CONSTITUTE
THE SOLE REMEDIES OF THE BUYER AND THE SOLE LIABILITY OF SELLER AND
ITS AGENTS AND SUBCONTRACTORS WITH RESPECT TO SUCH GOODS AND/OR SERVICES,
WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
OTHERWISE, AND ANY SUCH LIABILITY SHALL TERMINATE UPON THE EXPIRATION
OF THE WARRANTY PERIOD SPECIFIED IN SUCH WARRANTIES.
B. IN NO EVENT SHALL SELLER OR ITS AGENTS OR SUBCONTRACTORS HAVE ANY
LIABILITY TO BUYER, WHETHER AS A RESULT OF BREACH OF CONTRACT, TORT
LIABILITY (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND
WHETHER ARISING BEFORE OR AFTER DELIVERY OF THE GOODS AND/OR PERFORMANCE
OF THE SERVICES FURNISHED UNDER THE SALES CONTRACT, FOR ANY SPECIAL,
INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PENAL LOSS OR DAMAGE
OF ANY NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGE TO OR
LOSS OF USE OR PLANT OR EQUIPMENT, EXPENSES INVOLVING INTEREST CHARGES
OR COST OF CAPITAL, LOSS OF PROFITS OR REVENUES, COST OF SUBSTITUTE
GOODS, PRODUCTS, EQUIPMENT, FACILITIES OR SERVICES, COST OF PURCHASED
OR REPLACEMENT POWER (INCLUDING ADDITIONAL EXPENSES INCURRED IN USING
EXISTING POWER FACILITIES), OR CLAIMS OF BUYER’S CUSTOMERS, WHETHER
OR NOT BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
C. IN NO EVENT SHALL THE LIABILITY OF SELLER OR ITS AGENTS OR SUBCONTRACTORS
FOR DAMAGES ARISING OUT OF OR CONNECTED WITH THE SALES CONTRACT, OR
THE PERFORMANCE OF BREACH THEREOF, OR THE DESIGN, MANUFACTURE, SALE,
RESALE, DELIVERY, INSTALLATION, USE OPERATION, MAINTENANCE, OR REPAIR
OF THE GOODS AND/OR SERVICES PROVIDED UNDER THE SALES CONTRACT, WHETHER
IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE,
EXCEED THE PURCHASE PRICE OF SUCH GOODS AND/OR SERVICES.
9. DELAYS: Seller shall not be liable for delays in
performing or failure to perform its obligations under the Sales Contract
resulting directly or indirectly from, or contributed to by acts of
God; acts or failure to act of Buyer; acts or failures to act of civil
or military authority; governmental priorities; fires; strikes; or other
labor disputes; accidents; floods; epidemics; war; riot; delays in obtaining
or inability to obtain materials, components, labor, fuel or supplies;
or any other circumstances beyond Seller’s reasonable control,
whether similar or dissimilar to the foregoing. In the event of any
such failure or delay, the time for Seller’s performance shall
be extended by a period equal to the time lost by reason of such failure
or delay. Seller shall notify Buyer promptly of any material delay,
and shall specify the revised delivery date as soon as practicable.
10. PATENTS:
A. Seller warrants that products furnished under the Sales Contract,
and any part thereof, shall be delivered free of any rightful claim
of any third party for infringement of any United States patent. If
Buyer shall have made all payments then due under the Sales Contract,
and if Seller is notified promptly in writing and given authority, information
and assistance, Seller, at its expense, shall defend or, at its option,
may settle any suit or proceeding against Buyer, so far as based on
a claimed infringement which would result in a breach of this warranty,
and Seller shall pay all damages and costs awarded therein against Buyer
due to such breach. In case any product or part thereof is in such suit
held to constitute such an infringement and the use of said product
or part is enjoined, Seller shall, at its expense and option, (1) procure
for Buyer the right to continue using said product or part, or (2) replace
the same with a non-infringing product or part, or (3) modify the same
so that it becomes non-infringing or (4) remove the product and refund
the purchase price (less reasonable depreciation for any period of use)
and any transportation costs separately paid by Buyer. Notwithstanding
any other provision hereof, the foregoing states the entire liability
of Seller for patent infringement by said products or any part thereof.
B. Section 10A shall not apply to any product or part thereof specified
by Buyer or manufactured to Buyer’s design, or to the use of any
product or part thereof in conjunction with any other product in a combination
not furnished by Seller as a part of this transaction. As to any such
product, part or use in such combination, Seller assumes no liability
whatsoever for patent infringement and Buyer will hold Seller harmless
against any infringement claims arising therefrom.
11. OWNERSHIP OF SELLER’S DATA, ETC.: Any specifications,
drawings, manufacturing data, or other information transmitted to Buyer
by Seller are the property of Seller and are disclosed in confidence
on the condition that, without Seller’s prior written consent,
they shall not be reproduced or copied, and shall not be used except
in connection with the goods and/or services which are the subject of
the Sales Contract.
12. GOVERNING LAW: The Sales Contract shall be governed
by and construed in accordance with the laws of the State of Connecticut,
United States of America.
13. ASSIGNMENT: The Buyer may not assign its rights
or obligations under the Sales Contract without the prior written consent
of Seller, and any purported assignment of such rights or obligations
without such consent shall be void.
14. MISCELLANEOUS: All rights and remedies of Seller,
whether conferred hereby, by any other instrument, or by law, shall
be cumulative, and be exercised singularly or concurrently. If any provision
of the Sales Contract is held invalid under any applicable statute or
rule of law, such invalidity shall not affect other provisions of the
Sales Contract which can be given effect without the invalid provisions,
and to this and the provisions of the Sales Contract are declared to
be severable. Failure of Buyer or Seller to exercise any right hereunder
upon one or more occasions shall not waive the right to exercise the
same on another occasion.
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