LINCOLN ELECTRIC CUTTING SYSTEMS, INC.
TERMS AND CONDITIONS
RELATING TO THE SALE OF GOODS
Effective Date: July 1, 2016
Lincoln Electric Cutting Systems, Inc., d/b/a Torchmate or The Vernon Tool Company (hereinafter, “Seller”) reserves the right to change these Terms and Conditions of Sale at any time. The Terms and Conditions applicable to an order shall be those in effect at the time the order is placed.
- 1. DEFINITIONS
- “Agreement” means these Lincoln Electric Cutting Systems, Inc. Terms and Conditions Relating to the Sale of Goods (“Terms and Conditions”), together with Seller’s Proposal, the Order Acknowledgement, the System Design, and the Build Schedule, together with any agreed-upon amendments thereto, which together shall comprise the entire Agreement.
- “Build Schedule” means the approved timetable established between the Buyer and Seller, utilizing the designs, resources and processes required to provide the services and manufacture the System.
- “Buyer” means the person or entity who is buying or who is contracting to buy the Goods and/or Services.
- “Component Parts” means a constituent part of a System or an accessory used in conjunction with a System.
- “Consumables” means any material that is consumed within the welding/cutting or other processes.
- “End User” means the person or entity who ultimately uses or possesses the Goods without any intention of resale. The End User may be the Buyer.
- “Goods” means any saleable item manufactured by Seller and/or listed in Seller’s Product List for delivery, sale, or use as the context requires. Goods include System(s), Component Parts, and Consumables.
- “Order Acknowledgment” means a written document generated by Seller, or any of the actions taken by Seller as set forth in Section 2 of these Terms and Conditions, that authorize the sale of Goods as agreed by Buyer and Seller.
- “Product List” means the comprehensive listing of all Goods offered for delivery, use or sale by the Seller.
- “Price” means the amount agreed to by Seller and Buyer for the Goods as further outlined in an Order Acknowledgement or the Agreement.
- “Purchase Order” means a document generated by Buyer authorizing the purchase of Goods by Buyer.
- “Request for Quote” means Buyer’s request to Seller for information pertaining to the purchase of Goods.
- “Seller” means Lincoln Electric Cutting Systems, Inc.
- “Seller’s Proposal” means the document generated by Seller itemizing a System and/or other Goods to be offered for sale to the Buyer. All terms set forth in Seller’s Proposal shall be incorporated into the Agreement upon Order Acknowledgement and shall be deemed to be part of the Agreement.
- “System” means an automated cutting system that is for sale or is being contracted to be sold by Seller that is built to Buyer’s specifications. Virtually all automated cutting systems consist of three primary components: 1) A Part Program that creates a detailed set of commands to be followed by the machine tool; 2) A Machine Control Unit (MCU) that stores the part program and executes the commands; and 3) A Machine Tool (laser, drill, plasma, lathe, etc.) that performs the actual cutting.
- “System Design” means the engineering and other technical specifications that are the basis for a System; including but not limited to a complete listing of all system components, a set of assembly and component drawings with dimensions, plasma cutting tolerances, cutting variables, and/or any other specifications that are required for the System to be built.
- 2. SCOPE OF THE TERMS AND CONDITIONS
These Terms and Conditions apply to any purchase or request for Goods or Services by Buyer to Seller. Buyer’s purchase and/or acceptance of Seller’s Goods and/or Services constitutes Buyer’s unconditional acceptance of these Terms and Conditions. Seller’s issuance of a written Order Acknowledgement, its commencement of work on the Goods or Services, or its shipment of the Goods to Buyer, whichever occurs first, shall constitute Buyer’s Order Acknowledgement and acceptance of Buyer’s request for Goods and/or Services, and the formation of the Agreement, subject to these Terms and Conditions. All sales by Seller of any Goods and/or Services are governed by and made expressly conditioned on Buyer’s acceptance of these Terms and Conditions. No conditions, usage of trade, course of dealing, understanding, or agreement purporting to modify, explain, or supplement these Terms and Conditions shall be binding unless made in writing and signed by Seller. No other terms and no modification of these Terms and Conditions shall be binding or enforceable unless expressly agreed to in writing by Seller. ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED IN BUYER’S PURCHASE ORDER OR ANY OTHER FORM ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS, AND NOTICE OF SELLER’S EXPRESS OBJECTION TO AND REJECTION OF SUCH TERMS IS HEREBY GIVEN. Seller’s failure to object to any conflicting, contrary, or additional conditions in Buyer’s Request for Quote or Purchase Order, shall not be deemed an acceptance of such conditions or a waiver of any of the provisions hereof. In the event there is a conflict between Seller’s Order Acknowledgment, Seller’s Proposal or invoice(s), and these Terms and Conditions, the Order Acknowledgment shall prevail and control.
Seller reserves the right to revise the Terms and Conditions from time to time in Seller’s sole discretion. The Terms and Conditions applicable to a given Order shall be the version in effect at the time of Seller’s acceptance of the Agreement. Any changes or amendments to these Terms and Conditions shall become effective on the date when such revised terms and conditions of sale are posted on Seller’s websites. Revised terms and conditions shall apply to all new Agreements created on or after the date the revised terms and conditions are posted on Seller’s websites. Seller shall not be obligated to notify Buyer separately of any changes, amendments, or updates to these Terms and Conditions. It is Buyer’s responsibility to check Seller’s websites periodically to verify whether a revised version of these Terms and Conditions has been posted.
- 3. SYSTEM BUILD PROCEDURE
Upon acceptance of an Order but prior to the start of System production, Buyer and Seller shall coordinate the System’s design specifications to ensure the System is designed in accordance with Buyer’s requirements.
- A. System Design and Build Schedule
Upon Order Acknowledgement and receipt of Buyer’s required payment, Seller and Buyer shall work together to determine Buyer’s System specifications. Once established, Seller shall execute a System Design. System Design specifications include, but are not limited to, a complete listing of System components, a set of assembly and component drawings with dimensions, plasma cutting tolerances, cutting variables, and any additional technical and/or engineering specifications necessary to build the System. Seller reserves the right to modify any Agreement, including System Price, based upon any new or special requirements or information not previously incorporated into the Agreement. Once Buyer and Seller have approved a System Design, Seller and Buyer shall produce an approved System Build Schedule, signed by both, to ensure the System is manufactured in accordance with the System Design and within the timeframe approved by Buyer and Seller. The Build Schedule includes but is not limited to: all key milestones and production deadlines; System specifications; all required equipment, materials, other Goods and tools; projected completion deadlines; factory acceptance testing and installation requirements; if any, and estimated ship date(s). Execution of the Build Schedule shall constitute approval of System Design.
- B. Buyer Change Orders
No requests for changes shall be considered by Seller upon completion of System production. Following Buyer and Seller’s approval of the System Design and Build Schedule as referenced in 3(A) above, no changes shall be made to either without the express written approval of Seller. To request a change to an approved System Design and/or Build Schedule, Buyer must submit a request for change (“RFC”) to Seller in writing prior to the completion of System production. RFCs must include all required drawings, specifications, dimension tolerances, and any other information/documentation necessary for the performance of the requested modification(s) at the time of submission. Upon receipt of a Buyer’s RFC, Seller shall review the RFC to determine the viability of the changes requested as well as whether the requested changes would result in a modification of the System Price and/or Build Schedule.
Once established, Seller shall provide Buyer with a written estimate (“Change Estimate”) detailing the costs associated with the implementation of the approved changes, if any, as well as a corresponding modified Build Schedule, incorporating any new or changed milestones and/or key System production dates. These costs shall include, but are not limited to, the addition of any Component Parts, labor, services or other Goods not previously quoted in the Agreement, as well as any previously purchased Goods that can no longer be used due to the changes.
Upon Seller’s receipt of Buyer’s signed Change Estimate and modified Build Schedule, any modifications to the System Design and/or Build Schedule set forth therein shall be implemented immediately, provided that both are received within five (5) calendar days of the date of issue to Buyer. Modified System Design(s) and/or modified Build Schedule(s) shall be incorporated into the Order as an amendment and shall be deemed a part of the Agreement. Any additional costs, fees, and/or expenses incurred by Seller due to the implementation of the modified System Design and/or modified Build Schedule shall be paid by Buyer in accordance with the Agreement, as amended. Additional fees may apply for storage of Systems for which performance has been suspended.
Buyer’s failure to provide Seller with a signed Change Estimate and modified Build Schedule within the prescribed timeframe shall result in Seller’s denial of Buyer’s RFC, and System production shall continue in accordance with the original System Design and Build Schedule as set forth in the Agreement.
- C. Factory Acceptance Testing (FAT)
If provided for in the Order, Seller shall conduct FAT at the time of the completion of System production. Upon completion of FAT, Seller shall provide Buyer with evidence of the System’s successful FAT verifying that the System meets the specifications and requirements set forth in the System Design and/or Build Schedule (or as modified, if applicable) as referenced in Section 3.A or 3.B above as measured by the FAT. Seller’s evidence of a successful FAT may also include certification documentation required for compliance with a variety of end-users specific standards as agreed to by the parties and documented in the Agreement.
Within three (3) business days of receipt of Seller’s evidence of successful FAT, Buyer shall provide Seller written confirmation indicating Buyer’s approval or rejection of successful FAT (“FAT Review”). Any FAT Review rejections must indicate verifiable deficiencies in the testing process. If Seller is able to verify that such deficiencies do exist, Seller shall cure the deficiencies noted in Buyer’s rejected FAT Review.
Buyer’s failure to provide Seller a FAT Review within the prescribed time frame shall constitute Buyer’s approval of the FAT Review. Provided that Buyer has made all required payments and unless otherwise indicated in the Agreement, upon Seller’s receipt of Buyer’s approved FAT Review, Seller shall authorize System shipment to Buyer’s facility as designated in the Agreement. Buyer’s unreasonable withholding of its approval of FAT Review shall constitute a breach and shall be grounds for Seller to invoke the remedies provided for in these Terms and Conditions or by applicable law.
- D. Installation By Seller
If provided for in the Agreement, Seller shall provide installation services at Buyer’s location in accordance with the System Design and Build Schedule (or as modified, if applicable) as referenced in Section 3.A or 3.B above. If installation is consistent with the System Design and Build Schedule (as modified, if applicable) as referenced in Section 3.A or 3.B above, as determined by Seller, Buyer shall provide Seller with written approval of installation within three (3) business days of System installation. In the event Buyer claims that the System’s installation is noncompliant with the System Design and Build Schedule (as modified, if applicable) as referenced in Section 3.A or 3.B above, Seller shall make all reasonable efforts to correct any deficiencies described by Buyer and confirmed by Seller. Buyer’s unreasonable withholding of approval of System installation shall constitute a breach and shall be grounds for Seller to invoke the remedies provided for in these Terms and Conditions or by applicable law.
- 4. SYSTEM PRICE AND PAYMENTS
Prices quoted are valid for 30 days from the quoted date. Seller reserves the right to change the pricing of the Goods at any time. Purchasers of earlier designed Goods are in no way entitled to exchange for or upgrade to redesigned Goods (including software), except at the sole discretion of Seller and at an exchange or upgrade price determined by Seller.
System Price shall be set forth in the Order Acknowledgement. System Price does not include any federal, state, or local sales, use, excise, gross receipts, value added, or other taxes which may now or hereafter be applicable. Buyer agrees to pay or reimburse Seller for any such taxes that Seller or its suppliers are required to pay or collect in connection with the Agreement. Any additional taxes, charges or fees not included in an Order, may be invoiced separately to Buyer. Payment terms for such additional taxes, charges or fees are net thirty (30) days from the date of invoice.
Payment shall be made as specified below or in Seller’s Proposal in the currency indicated in the Order Acknowledgement (or, if none is indicated, in United States Dollars). Standard payment terms for a System shall be as follows:
For Torchmate products:
- 100% due upon Seller’ Order Acknowledgement
For Vernon Tool products:
- 60% due upon Seller’ Order Acknowledgement; and
- 40% due upon completion of the production process but prior to authorization of System shipment to Buyer’s facility or other Buyer designated location.
Payments are due at the time of the occurrence of the foregoing events, or upon cancellation of any Agreement. Seller does not provide any cash discounts. Alternative payment terms may be offered at Seller’s sole discretion, however, additional charges may apply.
It is Buyer’s responsibility to pay the amounts at the times and in the manner delineated in an Order. Buyer is required to comply with all payment schedules in a timely manner irrespective of whether Seller issues an invoice to Buyer as a reminder of Buyer’s payment obligations. The failure by Buyer to make payments in the amount and manner specified constitutes a waiver of Buyer’s right to demand Seller’s performance under the Agreement. If Buyer shall fail to perform its obligations to make payment when due under these Terms and Conditions, then in addition to any other remedies set forth herein or available under applicable law, Seller reserves the right to bill late payment charges of 1.5% per month on Buyer’s past due invoices as well as to revoke payment terms on future orders.
Should Seller determine, in its sole discretion, that Buyer’s credit has become impaired or its financial condition has become such that, in Seller’s sole judgment, the credit extended to Buyer for the System should be curtailed or eliminated, Seller shall have the right to require full payment in advance of the payment schedule set forth in this Section.
Buyer’s failure to perform its payment obligations under the terms set forth in the Order shall constitute a material breach and shall be grounds for: 1) Seller’s suspension of performance on Buyer’s System until such time that Seller determines, in its sole discretion, performance shall recommence or the Order be cancelled; or 2) Seller to invoke any other remedies provided for in these Terms and Conditions or by applicable law. Additional fees may apply for Systems for which performance has been suspended.
- 5. SYSTEM SHIPPING AND DELIVERY
In the absence of shipping and packaging instructions, Seller shall use its own discretion in the choice of carrier and method of packaging. Seller shall not be responsible for insuring shipments unless specifically requested by Buyer and any insurance or special packaging so requested shall be at Buyer’s expense and valuation.
Unless otherwise agreed in writing by Buyer and Seller, upon completion of System production and receipt of all required payments by Buyer, Seller shall authorize System shipment to Buyer’s location as indicated in the Agreement. Subject to the transfer of title and risk of loss provisions below, all shipping deadlines set forth in an Order and/or the Build Schedule (as modified, if applicable) as referenced in Sections 3.A or 3.B above, are approximate only and are based upon the availability of purchased Goods and scheduling demands in Seller’s factory. While Seller shall engage in its best efforts to comply with these delivery dates, Seller shall not be liable for any penalties or damages of any kind if these anticipated shipment deadlines are not met.
System Price includes standard packing, marking, labeling, and shipping as determined by Seller. Seller reserves the right to charge additional shipping and handling costs to Buyer if Buyer requires additional packaging of the System and/or has other special delivery requirements. Seller agrees to provide required shipping documentation such as a commercial invoice, packing lists, bills of lading, or other customary documents for domestic and international shipments. Export boxing/crating charges, where required by the Buyer, may require an additional charge and shall be addressed in the Agreement. All charges will be pre-paid by Seller and added to Buyer’s invoice.
Standard System delivery is as follows:
All domestic shipments shall be made Free On Board (“FOB”) Origin: Seller’s Point of Manufacture, (Freight Prepaid & Add) Reno, Nevada.
All international shipments shall be made using Incoterms 2010®, Ex Works (“EXW”): Seller’s Chosen Facility (Loading Included) Reno, Nevada.
All additional fees and charges, including but not limited to: customs broker and freight forwarder fees, warehouse and terminal charges, insurance, inspection, storage, special notifications, and special equipment/handling charges shall be at the Buyer’s additional expense unless otherwise agreed in writing by Seller. Any such expenses may be separately invoiced to Buyer, and Buyer must pay for all such additional charges within thirty (30) days of the date of Seller’s invoice.
If Buyer is responsible for any delay in System shipment, Seller reserves the right to charge Buyer additional fees for System storage to be determined at Seller’s sole discretion.
- 6. INSPECTION AND ACCEPTANCE.
Upon Buyer’s receipt of the Goods, Buyer shall immediately inspect the Goods. Unless Buyer provides Seller with written notice of any claim for shortage, overcharge, or damage of Goods within ten (10) days from invoice date, such Goods shall be deemed finally inspected, checked, and accepted by Buyer, and no allowances shall be made thereafter.
- 7. SYSTEM POST-INSTALLATION SERVICE AND SUPPORT
If provided for in the Agreement, following System installation and within six (6) months of shipment, Seller shall make a technical representative available to the Buyer to conduct training for operational and maintenance personnel. Buyer is responsible for all travel and lodging costs of such technical representatives. Such training shall be conducted only to the extent provided for in the Agreement. Seller will not have any obligation to perform training after six (6) months from the date of System shipment. Seller will not refund any amounts previously paid by Buyer if Buyer does not complete training within one year from the date of System shipment.
- 8. SYSTEM TRANSFER OF TITLE AND RISK OF LOSS
Transfer of title and risk of loss of the System shall transfer from Seller to Buyer upon tender of the System to the first carrier at Seller’s facility, and any claims for loss or damage thereafter shall be made by Buyer directly with such carrier.
- 9. BUYER’S PROPERTY FOR THE SYSTEM
Buyer may, during the System production process, provide Seller with equipment owned by Buyer such as jigs, tools, drawings, fixtures, dies, molds, patterns and materials to reduce the costs of customizing the System in accordance with the System Design specifications (or as modified, if applicable) as referenced in Section 3.A or 3.B above. Such items are the legal property of Buyer. Seller shall maintain such items in good working order and shall ensure that these items are clearly marked and stored as being the legal property of the Buyer and that any use of the same is restricted to the production of Buyer’s System.
- 10. PURCHASE MONEY SECURITY INTEREST FOR THE SYSTEM
Seller is hereby given, and shall be deemed to have, a purchase money security interest in the System from the beginning of the production process until all payments are received by Buyer. Buyer shall execute, upon Seller’s demand, such instruments and documents, including Uniform Commercial Code (“UCC”) financing statements, as Seller shall require. If Buyer fails or refuses to sign any such statements, Seller is irrevocably authorized to execute such statements as Buyer’s attorney in fact, subject to Buyer receiving prior notice of any such statements. Said security interest shall remain until Seller receives full payment of the purchase price; after which such UCC financing statements shall be terminated.
- 11. COMPONENT PARTS AND CONSUMABLES
The following provisions shall apply to the purchase and delivery of Component Parts and Consumables.
- A. Purchase of Component Parts and Consumables
Prices for Component Parts and Consumables shall be established by Seller and shall be those in effect at the time of Order creation. Buyer must pay Seller’s invoices for Component Parts within thirty (30) days of the date of Seller’s invoice, with pre-approved credit in place. Seller offers no cash discounts. Seller may change this method of payment if, in its judgment, extension of such terms is not justified. The price for Component Parts or Consumables does not include any federal, state or local sales, use, value added, excise, gross receipts, or other taxes which may now or hereafter be applicable. Buyer agrees to pay or reimburse Seller for any such taxes which Seller or its suppliers are required to pay or collect. Buyer is responsible for all shipping costs and risks associated with the delivery of Component Parts and Consumables; both domestic and international.
- B. Delivery of Component Parts and Consumables
Any estimated shipment and/or delivery times for Component Parts and Consumables scheduled to be delivered to Buyer are approximate only. Seller shall use its best efforts to make delivery in accordance with deadlines set forth in the Agreement, but Seller shall not be liable for damages of any kind if the designated shipment date is not met. Delivery times shall be automatically extended as needed to resolve any technical matters between the Seller and the Buyer with respect to the delivery, installation, or use of Component Parts and/or Consumables. The Seller shall be entitled to make partial deliveries.
All domestic shipments of Component Parts and Consumables shall be made Freight On Board (“FOB”) Origin: Seller’s Point of Manufacture, (Freight Prepaid & Add) Reno, Nevada. All international shipments shall be made using Incoterms 2010®, Ex Works (“EXW”): Seller’s Chosen Facility (Loading Included) Reno, Nevada.
- C. Title and Risk of Loss
Title and risk of loss shall pass to the Buyer upon tender of the Components to the first carrier.
All returns shall be subject to these Terms and Conditions. Any Goods to be returned for full or partial refund must be in new, unused (except for bench testing), and in saleable condition, and approved for return by Seller in Seller’s sole discretion. Goods that, in Seller’s judgment, have been used or modified in any way, or kits that have been partially or fully completed will be subject to an eighteen percent (18%) restocking fee to be determined by the Seller. A return authorization number (RAN) must be obtained by the Buyer prior to any return. Shipments of returned Good not marked with a valid RAN will be refused.
- 13. STATEMENT OF WARRANTY
- A. Limited System Warranty
Except for Consumables or those parts customarily replaced due to wear and tear during the course of normal operation, Seller warrants its System to be free from defective material and workmanship for a period of twelve (12) months from the date of System shipment. Parts customarily replaced due to wear and tear include but are not limited to: lenses, fuses, lamps, scrapers, electrodes, shunts, emitters, and/or cutting nozzles. This warranty does not include routine mechanical, electrical, and electronic adjustment such as described in the instruction manuals furnished with the System. Such adjustments are the responsibility of Buyer.
This warranty specifically excludes all third party components or component parts not manufactured by Seller. Most third party manufactured components within the System(s) are warranted by the original manufacturers, and are not covered by Seller’s warranty. This warranty is void if the System has been subjected to improper installation, improper care, or abnormal operations, or if repairs or modifications have been undertaken without the express written approval of Seller, outside of a Seller’s Approved Service Facility (“ASF”), and/or without written authorization from the ASF prior to any such repair. This warranty also does not cover the repair and/or replacement of electrical or electronic parts damaged by improper voltage supplies, improper electrical connections to the System, or improper electrical grounding techniques. Buyer’s failure to follow all Seller recommended preventative maintenance schedules may also render the Seller’s warranty void.
Buyer shall contact Seller immediately upon the discovery of any defect or other basis of warranty coverage. Upon notification of non-conforming, inoperative, or defective System parts, or other claims of System warranty coverage, Seller reserves the right to inspect the System parts to determine warranty eligibility. The sole obligation of Seller hereunder is to replace or repair, at the Seller’s option, any part which the Seller, in its sole discretion, determines to be defective under normal use and service during the warranted period.
If Seller confirms the existence of a defect covered by Seller’s warranty, Seller shall create a Return Merchandise Authorization (“RMA”) approving the repair or replacement of the defective or inoperable System part/component and shall assist the Buyer with the coordination of its warranty service. An approved RMA must accompany any System part/component shipped to an ASF for warranty repair or replacement. Any such shipments to and from an ASF for warranty repair or replacement shall be at the sole expense and risk of the Buyer or Buyer’s End User. At Seller’s request, any defective System parts or components thereof shall be returned to Seller.
Warranty coverage is available only to the initial End User and is non-transferrable. Any subsequent purchaser interested in transferring warranty coverage must contact Seller to determine whether warranty coverage may be transferred on its Goods and if an additional charge will be required for such transferability. A separate written agreement will be required for this coverage.
Limited Warranty for Component Parts (“Component Parts Warranty”)
Component Parts manufactured by Seller, except for Consumables or those parts customarily replaced due to wear and tear during the course of normal operation, or Component Parts that are part of either the Torchmate 4400 or Torchmate 4800 systems, are warranted by Seller’s Component Part Warranty to be free from defective material and workmanship for a period of up to twelve (12) months from the date of System shipment to Buyer. Component Parts that are part of either Torchmate 4400 or Torchmate 4800 system are warranted by Seller’s Component Part Warranty to be free from defective material and workmanship for a period of up to twenty-four (24) months from the date of System shipment to Buyer. Buyer shall contact Seller immediately upon the discovery of any defective manufactured Component Part or other claims of warranty coverage. If the Seller confirms the existence of a defect covered by Seller’s Component Part Warranty, Seller shall create a Return Merchandise Authorization (RMA) approving the repair or replacement of the defective component(s) and/or Component Part(s) and shall assist the Buyer with the coordination of warranty service. An approved RMA must accompany the component(s) and/or Component Part(s) shipped to an ASF. Final determination of warranty coverage eligibility shall be made by the Seller. Component(s) and/or Component Part(s) shipped to and from an ASF for warranty repair or replacement shall be at the sole expense and risk of the Buyer or Buyer’s End User. Any Component Parts to be returned for full or partial refund must be in new, unused (except for bench testing), and saleable condition and approved by Seller in Seller’s sole discretion.
A return authorization number (RAN) must be obtained by the Buyer prior to any return. Shipments of returned items not marked with a valid RAN will be refused. Seller’s Component Parts Warranty in no way extends the System Warranty.
Almost all third-party original equipment manufacturer (“OEM”) Component Parts used in Seller’s System(s) are warranted by the OEM, and are therefore not covered by Seller’s Component Part Warranty. If OEM Component Parts are found to be defective or non-conforming and are covered by an OEM warranty, Seller shall assist Buyer in identifying any defects and shall work with local distributors to ensure that OEM Component Parts are repaired or replaced as required, subject to the terms and restrictions of the OEM’s warranty.
- B. Limited Warranty for Consumables
All Consumables are warranted by a third-party OEM and are therefore not covered by Seller’s warranty. Requests for warranty eligibility for Consumables shall be evaluated on a case-by-case basis and shall be determined by Seller in its sole discretion. To request a determination for warranty eligibility and/or to request warranty service for Consumables, Buyer must contact the Seller directly. Warranty periods for Consumables are for up to one year, vary by product, and are subject to the terms of the OEM warranty. The warranty period starts from the date of shipment of the Goods to Buyer.
- C. Warranty Limitations
Seller’s warranties do not apply to any Goods that have been subjected to misuse, mishandling, misapplication, neglect (including but not limited to improper maintenance), accident, improper installation, modification (including by not limited to use of unauthorized parts or attachments), or adjustment or repair performed by anyone other than Seller or one of Seller’s authorized agents. When returning Goods to Seller for warranty replacement or repair, packaging must be adequate, or else Seller’s warranty is null and void. Buyer will pay for the cost of shipping to and from Seller for all approved warranty repairs.
THE WARRANTIES SET FORTH HEREIN ARE THE ONLY WARRANTIES PROVIDED BY SELLER WITH RESPECT TO THE SYSTEM, COMPONENT PARTS, AND CONSUMABLES. SELLER WILL NOT ACCEPT RESPONSIBILITY OR LIABILITY FOR REPAIRS MADE OUTSIDE OF AN AUTHORIZED SERVICE FACILITY (“ASF”). SELLER’S LIABILITY UNDER THIS WARRANTY SHALL NOT EXCEED THE COST OF REPAIRING OR REPLACING THE GOODS, OR REFUNDING THE BUYER OR END USER AN AMOUNT EQUAL TO THE TOTAL PURCHASE PRICE OF THE GOODS, WHICHEVER REMEDY SELLER CHOOSES IN ITS SOLE DISCRETION. SELLER WILL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES CAUSED BY ANY DEFECT OR THE TIME INVOLVED TO CORRECT THE DEFECT. BUYER ASSUMES ALL RISK WHATSOEVER AS TO THE RESULT OF THE USE OF THE GOODS, WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS OR SUBSTANCES. SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY DISCLAIMED.
The exclusive remedies set forth herein shall not be deemed to have failed of their essential purpose so long as Seller is willing and able to repair or replace defective Goods as set forth herein. No affirmation of Seller, by words or action, other than as set forth in herein, shall constitute a warranty. Any claim by Buyer with reference to the Goods sold hereunder shall be deemed waived by the Buyer unless submitted in writing to seller within the earlier of (i) thirty (30) days following the date Buyer discovered or by reasonable inspection should have discovered, any claimed breach of foregoing warranty, or (ii) 12 months following the date of shipment. Any cause of action for breach of the foregoing warranty must be brought within one year from the date the alleged breach was discovered or should have been discovered, whichever occurs first.
- 14. CONFIDENTIALITY
“Confidential Information” means all information, know-how, trade secrets or other material disclosed by Buyer to Seller and Seller to Buyer. Both Buyer and Seller shall treat each other’s Confidential Information as confidential; shall not use such Confidential Information except in connection with this Agreement, and shall not disclose such Confidential Information to any third-party who has not executed an agreement to maintain the confidentiality of the Confidential Information with restrictions at least as restrictive as those set forth herein. All technical, business, sales, distribution channel, financial, marketing, pricing, planning, competitor information, and the lists of customers who have purchased Goods from Seller are considered Confidential Information. Confidential Information does not include information that is: (i) generally known and available in the public domain; (ii) was known to either Seller or Buyer prior to the date of disclosure; (iii) was received from a third-party without any obligation of confidentiality; or (iv) was independently developed without reliance on Confidential Information. Given the nature of the Confidential Information and the likely consequences of its unauthorized use or disclosure, monetary damages would not be an adequate remedy and both Seller and Buyer reserve the right to seek and obtain injunctive relief, in addition to any other remedy that may be available, in any proper forum.
- 15. INTELLECTUAL PROPERTY INDEMNITY
- A. By Seller. Seller agrees to defend any suit, proceedings, or counterclaim against Buyer for the infringement of any United States Letters Patent by: (1) any Goods, of whatever kind, or any parts thereof, made to Seller’s design or specifications, but only in the form, state or condition supplied under these Terms and Conditions; or (2) any use of such Goods where the Goods constitute a material part of any patented method of such patent and are not a staple article or commodity of commerce suitable for substantial non-infringing use. Such defense is conditioned upon Seller being: (1) notified promptly in writing of any charges of infringement; (2) given authority to direct and control the defense of such charge or suit; and (3) furnished such information and assistance, at Seller’s expense, as may be necessary for such defense. Seller shall pay all costs and damages awarded therein against Buyer. If at any time, such Goods or any part thereof, or their use, are considered by Seller to constitute infringement, Seller may, at its own expense: (1) procure for Buyer the right to continue using such Goods; (2) modify the Goods so they become non-infringing; or (3) remove the Goods and refund the purchase price and the transportation costs thereof, if any. The foregoing states the entire liability of Seller for patent infringement by such Goods or their use.
- By Buyer. If Buyer asks Seller to produce any Goods based on designs, specifications, or requirements provided by Buyer, or asks Seller to produce a product to which Buyer represents that Buyer has ownership rights and/or has a license to have built for Buyer (collectively hereinafter "Buyer Provided Specs"), then Buyer agrees to defend and indemnify Seller against any claims, suits, proceedings (whether in court or out of court) of all types whatsoever against Seller, its parent company, agents or affiliates, and shall indemnify Seller against all costs, damages, judgments, settlements, and compromises (including court costs and attorneys' fees) arising out of the infringement or claimed infringement of any patent, trademark, service mark, trade secret, copyright, moral rights or other claims of violation of intellectual property anywhere in the world by: (1) Buyer's request that Seller reproduce, manufacture, modify, utilize, or incorporate Buyer Provided Specs into an order placed with Seller; or (2) any misrepresentation by Buyer that it had ownership rights and/or a license to have products built for it when such representation was not accurate and/or resulted in claims against Seller based upon Seller's completion of a project for Buyer under such misrepresentation. Buyer shall pay all costs, damages, judgments, settlements, and compromises (including court costs and attorneys' fees) arising out of or related to such claims, suits, proceedings (whether in court or out of court) against Seller, its parent company, agents, or affiliates.
- 16. INDEMNIFICATION AND INSURANCE
Buyer shall indemnify, defend, and hold Seller harmless against all liabilities, damages, claims, losses, costs and expenses (including reasonable legal fees), relating to property damage, death, and/or bodily injury arising out of Buyer’s actions, omissions, or performance under any agreements to which these Terms and Conditions are applicable in full or in part.
Seller shall indemnify, defend, and hold harmless Buyer against all liabilities, damages, claims, losses, costs, and expenses (including reasonable legal fees) relating to property damage, death, and/or bodily injury to the extent arising out of Seller’s negligence, intentional misconduct, or performance under the Agreement.
Buyer shall maintain general liability insurance including coverage in an amount no less than five million (U.S. $5,000,000) dollars per claim for property damage, bodily injury, and contractual liability. Until Seller is in receipt of full payment by Buyer, Buyer shall maintain insurance in an amount that is sufficient to cover the cost of the System. Further, Buyer shall maintain insurance in an amount that is sufficient to cover the cost of any equipment owned by Buyer such as jigs, tools, drawings, fixtures, dies, molds, patterns and materials in Seller’s possession for the purposes of building Buyer’s System until such time that Buyer’s property is returned to Buyer. Unless otherwise agreed to by Buyer and Seller, Seller shall not maintain insurance on such Buyer-provided materials and will not assume any liability for destruction or loss of the same.
- 17. CHANGES
Seller reserves the right to alter, modify, or redesign its Goods without any obligation to notify Buyer or replace previous Goods sold to Buyer.
- 18. DELAYS; FORCE MAJEURE
Seller shall not be liable to the Buyer for any delay in any performance or for failure to render any performance, or any loss or damage associated therewith, when such delay or failure is directly or indirectly caused by governmental laws or regulations (whether or not valid); acts of war; acts of government; acts of God; acts of terrorism; sabotage; civil disturbances; strikes or other labor disturbances; equipment failure; the inability to procure raw materials, power, equipment, labor or other supplies on an economical or other basis; explosions; accidents; transportation delays or shortages; floods; landslides; epidemics; or similar or dissimilar events or conditions that are beyond the reasonable control of Seller, in any of the foregoing cases whether or not foreseeable (collectively hereinafter the “Force Majeure Event”). In expansion and not limitation of the foregoing, a Force Majeure Event shall be deemed to delay or prevent performance if it directly or indirectly causes the timely performance by Seller of any of its obligations to be commercially impracticable. Seller shall not be denied relief under this paragraph if it fails to avoid or resolve any Force Majeure Event, except to the extent that it fails to employ commercially reasonable efforts to avoid or resolve such event, which efforts shall not be required to include the expenditure of funds. Upon the occurrence of any Force Majeure Event, Seller shall have the right to extend the date upon which any performance hereunder is due and to allocate Goods among its customers in its sole discretion. In the event of any prolonged Force Majeure Event, Seller may, at its option and without liability, cancel all or any portion of this Agreement. This paragraph shall be effective and apply even if the Force Majeure Event invoked by Seller had been in effect on the date of Seller’s acceptance of the Agreement. This Section supplements, and does not replace, any remedies available to Seller under applicable law.
- 19. CANCELLATION; TERMINATION
Cancellation by Buyer. Buyer may cancel an Agreement only upon Seller’s written consent. There shall be absolutely no cancellations of an Agreement after completion of System production. If Buyer attempts to cancel an Agreement following completion of System production, Buyer shall pay Seller the full price established in the Agreement within sixty (60) days of completion of System production, irrespective of whether Buyer arranges for System shipment.
Suspension of Performance or Termination by Seller. Seller shall have the right to suspend performance under this Agreement, or terminate this Agreement in whole or in part, at its sole discretion, and without liability to Buyer, if: (1) Buyer fails to comply with any of the terms set forth in the Agreement (including without limitation withholding of any approvals required hereunder); (2) at any time the Buyer fails to post security or execute documentation required for a Purchase Money Security Interest within (15) days after Seller has requested the same; (3) there is an interruption or suspension of manufacture or assembly at the Buyer’s direction for a period of thirty (30) days or more, regardless of whether they are consecutive and regardless of cause; or (4) at any time, Buyer makes an assignment for the benefit of creditors, ceases doing business as a going concern, or becomes insolvent, or if a voluntary or involuntary petition for bankruptcy is filed by or against Buyer, or a trustee, receiver or liquidator is appointed to Buyer. Additionally any occurrence of breach by Buyer shall be grounds for Seller to invoke any remedies provided herein and any other legal or equitable remedies under applicable law.
Remedies upon Cancellation or Termination. If the Agreement is canceled for any reason prior to completion of System production, Buyer shall pay Seller for any and all costs actually incurred by Buyer in performance of this Agreement up to and including the date of cancellation, any prorated tooling charges remaining unpaid, the costs of settling and paying claims arising out of the termination of work under Seller’s subcontracts or vendors, and all actual costs incurred by Seller in connection with any uncompleted portion of the Agreement, plus ten percent (10.0%) of the total price of the Agreement as a cancellation fee (“Cancellation Fee”). Seller may deduct payments previously made by Buyer from the amount due. Seller shall then invoice Buyer for any remainder, to be paid by Buyer within ten (10) days of the date of the invoice. In the event a surplus exists from Buyer’s initial payments, Seller shall return the remainder, if any, to Buyer, within a reasonable time of Buyer’s cancellation. Seller shall have no responsibility or liability to Buyer for Seller cancellation, except for the return of any surplus funds due to Buyer. Should Seller complete performance under the Agreement, Seller shall be paid the full amount of the Agreement.
- 20. COMPLIANCE WITH LAWS
Buyer shall, at its own expense, comply with all applicable laws, regulations and other requirements of every applicable governmental authority, agency, or instrumentality and assume all liabilities or obligations imposed there with respect to Buyer’s performance under any agreements to which these Terms and Conditions are applicable in whole or in part and to the use of Seller’s Goods. Without limiting the generality of the foregoing, Buyer represents and warrants that it complies with the following laws (as amended) and any rules and regulations, if applicable, to the manufacture of Goods: (a) Federal Occupational Health and Safety Act of 1970; (b) Fair Labor Standards Act of 1938; (c) EC Directive on the Restriction on the Use of Certain Hazardous Substances in Electrical and Electronic Equipment; (d) EC Directive on Waste Electrical and Electronic Equipment; and (e) laws regarding discrimination as to age, race, color, religious creed, sex, ancestry or national origin, physical or mental disability or veteran status.
Buyer shall comply with all applicable laws and regulations with respect to the business conducted with Seller, including (without limitation) all applicable “Anti-bribery Laws,” which prohibit the payment or transfer directly or indirectly of anything of value to governments, government officials, state-owned enterprises, political parties, political party officials, or to relatives or associates of such officials, in connection with obtaining or maintaining business or an improper business advantage.
The U.S. government also imposes and enforces prohibitions on the payment or transfer of anything of value (either directly or indirectly) to governments, government officials, political parties, political party officials, or to relatives or associates of such officials, in connection with obtaining or maintaining business. This U.S. law is referred to as the Foreign Corrupt Practices Act (FCPA), and it can have application to conduct of a U.S. corporation’s foreign subsidiaries, employees and agents. A summary of the law and related information can be found at http://www.justice.gov/criminal/fraud/fcpa. Buyer warrants that:
- It is familiar with the provisions and restrictions contained in the FCPA.
- It shall comply with the FCPA in all respects. It shall not offer, promise, give, demand, seek or accept, directly or indirectly, any gift or payment, consideration or benefit in kind which would or could be construed as an illegal or corrupt practice.
Buyer acknowledges that the goods and technical data, if any, which are purchased or received under these Terms of and Conditions may be subject to the export controls of the U.S. Export Administration Regulation, the U.S. Department of Treasury Office of Foreign Assets Control, the U.S. Department of State and other U.S. agencies, as well as the export control regulations of foreign countries. Buyer acknowledges and agrees that the material and technical data, if any, which Buyer purchased or received under these Terms and Conditions and shall not be used for any prohibited purpose or transferred to a prohibited person or entity. Further, none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries upon which the United States maintains an embargo, or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Lists of Parties of Concern (collectively, “Designated Nationals”) or for any restricted end-use. Any diversion contrary to U.S. law is prohibited.
By purchasing Goods from Seller, Buyer represents and warrants that Buyer is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National, and that you shall not re-export, divert or transfer the Goods you purchase on this Website to an embargoed country, person or entity. Buyer agrees to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
Buyer further represents and warrants that Buyer shall (i) comply strictly with all legal requirements established under these controls; (ii) cooperate fully with Seller in any official or unofficial audit or inspection that relates to these controls; and (iii) not export, re-export, divert, transfer, or disclose, directly or indirectly, any purchased items or related technical information, document, or material or direct products thereof to any country, entity, person or end-user so restricted by the U.S. Export Administration Regulations or any other law or regulation, as modified by time to time, or to any national or resident thereof. Seller makes no representation that any items purchased for sale from Seller are appropriate for the use intended or available for use in other locations. Buyer is solely responsible for compliance with all applicable laws, including without limitation, export and import regulations of the United States and other countries.
Upon Seller’s request, Buyer shall sign a compliance certificate attesting that it and its employees, agents and representatives are currently and shall continue to be in compliance with all applicable laws and these Terms and Conditions.
- 21. LIMITATION ON CAUSES OF ACTION
Any action by Buyer for breach of the Agreement must be commenced within eighteen (18) months of the date of the alleged breach of the Agreement without regard to the date the breach is discovered. Any action not brought within eighteen (18) months shall be barred without regard to any other limitations period set forth by law or statute.
- 22. LIMITATIONS ON LIABILITY
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS OF BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, OR LOSS OF DATA, ARISING OUT OF OR RESULTING FROM THE SALE, DELIVERY, SERVICING, USE, OR LOSS OF THE GOODS SOLD HEREUNDER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR IF SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. Notwithstanding anything contained herein, in no event, regardless of tHe form of the claim or cause of action, SHALL SELLER’S AGGREGATE LIABILITY TO BUYER EXCEED the price paid by Buyer for the GOODS OR SYSTEM giving rise to such damages.
- 23. CUSTOMER ASSISTANCE POLICY
Seller’s goal is to meet Buyer’s needs and to exceed its expectations. On occasion, Buyer or End User may ask Seller for information or advice about their use of Seller’s Goods. Seller’s employees respond to inquiries to the best of their ability based on information provided to them by the Buyer or End User and the knowledge they have concerning the Goods in question. Seller’s employees, however, are not in a position to verify the information provided or to evaluate the engineering requirements for the particular application and therefore any advice that they may give is for informational purposes only. ACCORDINGLY, SELLER DOES NOT WARRANT, GUARANTEE, OR ASSUME ANY LIABILITY WITH RESPECT TO SUCH INFORMATION OR ADVICE. MOREOVER, PROVIDING SUCH INFORMATION OR ADVICE DOES NOT CREATE, EXPAND, OR ALTER ANY WARRANTY ON SELLER’S GOODS. Any express or implied warranty that might arise from the information or advice, including any implied warranty of merchantability or any warranty of fitness for any Buyer’s or End User’s particular purpose is expressly disclaimed. The selection and use of specific products sold by Seller is solely within the control of, and remains the sole responsibility of Buyer or End User. Many variables beyond the control of Seller affect the results obtained in applying these types of fabrication methods and service requirements.
- 24. RELATIONSHIP OF THE PARTIES
The relationship of Seller and Buyer is that of independent contractors. Seller’s relationship with Buyer shall not be construed to be that of employer and employee, nor to constitute a partnership, joint venture, or agency of any kind. Unless otherwise specified under these Terms and Conditions, Buyer agrees to pay, and shall solely bear, all of its incurred expenses in connection with this Agreement, including without limitation all travel, lodging, and entertainment expenses. Buyer shall have no right to enter into any contracts or commitments in the name of, or on behalf of, Seller or to bind Seller in any respect whatsoever.
- 25. SOFTWARE
Goods sold by Seller may include the appropriately licensed software normally provided therewith by the manufacturer. Software shall remain the property of its licensor. The terms and conditions of any software license agreement covering the software are incorporated herein by reference and supersede anything to the contrary herein. Buyer and End User agree to be bound by such terms and conditions, particularly those limiting the use and transfer of the software. Except as otherwise permitted therein, Buyer and End User shall use the software only with the Goods and shall not copy, remove, sublicense, rent, transfer, assign, sell, alter, modify or encumber the software without licensor’s prior written consent. Software is warranted only to the extent provided for directly by the licensor. Seller makes no warranty as to the performance of any software. Buyer and/or End User shall be fully responsible for, and shall indemnify, hold harmless, and, if so requested by Seller, defend Seller from and against, all matters whatsoever arising out of or in connection with or relating to software, including, without limitation, the ownership, copyrights, licensing, licensing terms, licensed quantities, warranties, functionality, fitness for use, operation, installation, malicious or criminal use and/or de-installation thereof.
- 26. DISPUTES AND APPLICABLE LAW
In the event of any controversy, claim, or dispute arising out of or relating to this Agreement (a “Dispute”), Seller and Buyer shall seek to resolve the matter amicably through mutual discussions to be initiated by written notice by the aggrieved party to the other party as promptly as possible after a Dispute arises. Such discussions are to be conducted diligently in good faith by both Seller and Buyer. Such discussions may be conducted over the telephone, or at a meeting or meetings, held at the principal offices of Seller, or at such other location as the parties may agree. If the Dispute cannot be resolved through mutual discussions as set forth above, either party may commence an action to resolve the Dispute in the Federal or state courts of the State of Ohio, and each of the Parties irrevocably submits to the exclusive jurisdiction of such courts, waives any objection it may now or hereafter have as to venue or as to convenience of forum, and agrees that all claims in respect to such Dispute be heard and determined only in such courts. Process in any such Dispute may be served on any party anywhere in the world. These Terms and Conditions and any agreements arising therefrom shall be governed and construed under the laws of the State of Ohio, as applied to contracts entered into and performed in that State, specifically excluding any conflict or choice of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable to these Terms and Conditions or any agreements created thereby or construed therewith.
- 27. NO ASSIGNMENT
Buyer may not assign any of Buyer’s rights or obligations under this Agreement without the express written consent of Seller.
- 28. ENTIRE AGREEMENT; MODIFICATION
This Agreement is the final and exclusive agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, relating to the subject matter hereof. The Agreement may not be varied, modified, altered, or amended unless agreed to in writing by Buyer and Seller.
- 29. NO WAIVER
No waiver will be binding unless made in writing and signed by the party making the waiver. No waiver of any breach by the other party of any provision hereof shall be deemed a waiver of any other, preceding, or succeeding breach of the same or any other provision, nor will any waiver constitute a continuing waiver. The delay by or failure of a party to enforce any provision of this Agreement shall not be construed as a waiver of that provision, nor shall it prevent that party from thereafter enforcing that provision or any other provision hereof.
- 30. SEVERABILITY
If any provision in an Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless remain in full force without being impaired or invalidated in any way.