The terms and conditions of sale contained herein apply to all 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.
ACCEPTANCE OF ORDERS
All purchase orders or contracts must be accepted in writing by the Seller at its office in Knoxville, Tennessee. 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 EXWorks Seller and are exclusive of any applicable sales, use, excise, or other taxes. All such taxes shall be for Buyer’s account and paid by Buyer. Any taxes (including income, 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 invoices.
Should these Terms and Conditions of Sale accompany a quotation, the prices therein will be valid for sixty (60) 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.
TERMS OF PAYMENT / PAYMENT TERMS
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 full purchase price is paid.
SHIPPING AND DELIVERY
Unless otherwise specified in the Buyer’s purchase order, shipment shall be EXWorks Seller. The method of shipment will be UPS Ground Service unless the Buyers purchase order specifies a preferred method of shipment. Buyer shall assume risk of loss or of damages to goods in transit. Should the Buyer desire insurance coverage on a shipment in an amount greater than the minimum value, it must be noted on the Buyers purchase order. Such additional coverage shall be at Buyer’s expense. Unless such notice is received, shipment shall be made at the minimum insurance valuation.
Upon receipt of the goods shipped hereunder Buyer shall inspect them immediately and shall within thirty (30) 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 thirty (30) 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 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 judgements, decrees, costs and expenses including reasonable attorney’s fees resulting from any alleged infringements of any United States or foreign letters patent. 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 United States Letters 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. 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.
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.
LIMITATION OF LIABILITY
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 the Seller’s current published Price Lists, for 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.
The limited warranty does not apply to performance 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 are normally consumed in operation, or 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 therefore.
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 hereunder (except as to title) are solely and exclusively as stated herein. In no case will seller be liable for consequential damages.
The total liability of Seller (including its subcontractors) on any claim, whether in contract, tort (including negligence whether sole or concurrent), or otherwise, 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 this order of any rights hereunder without the prior written consent of Seller shall be void.
ILLEGALITY OF PROVISION
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; however, all other terms and conditions
thereof 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 existence of such dispute, shall be referred
to the American Arbitration Association. 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 limiting, any Export License, Import License, Exchange Permit, or other governmental authorization, even though any such authorization may be applied for by Seller. Buyer and Seller shall assist each other in all reasonable manner 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.
All sales hereunder shall at all times be subjected to the applicable export control laws and regulations of the United States Government. 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.