STANDARD TERMS AND CONDITIONS OF SALE OF CONRAD KACSIK INSTRUMENT SYSTEMS, INC.
ENTIRE CONTRACT. THE TERMS AND CONDITIONS SET FORTH BELOW AND ON THE FACE HEREOF CONSTITUTE ALL THE TERMS OF THIS AGREEMENT AND A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN BUYER AND SELLER. ALL REPRESENTATIONS, PROMISES, WARRANTIES OR STATEMENTS BY ANY AGENT OR EMPLOYEE OF SELLER THAT DIFFER IN ANY WAY FROM THE TERMS AND CONDITIONS HEREOF SHALL BE GIVEN NO EFFECT OR FORCE. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any term used in this Agreement. All orders are subject to the approval by Seller at its offices in SOLON, OHIO. No waiver or alteration of terms herein shall be binding unless in writing, signed by an executive officer of Seller.
PRICE. All prices are US Dollar denominated and F.O.B. Seller’s plant. SOLON, OHIO, unless otherwise specifically set forth on the face side hereof. Prices stated are subject to change without notice in the event of: (i) alterations in specifications, quantities, designs, or delivery schedules; (ii) increases in the cost of fuel, power, material, supplies, or labor, as well as currency price fluctuations; and/or (iii) foreign or domestic legislation enacted by any level of government, including tax legislation, which increases the cost of producing, warehousing, or selling the Goods purchased hereunder. No discount will be allowed unless specifically set forth on the face side hereof. Buyer agrees to pay a delinquency charge of 1-1/2% per month, or if such rate shall exceed the maximum rate allowed by applicable law, then a delinquency charge calculated at such maximum rate, on the outstanding balances not paid when due, from the date such balances were due until payment with respect thereof is made in full.
WARRANTY. SELLER WARRANTS GOODS MANUFACTURED BY IT SHALL CONFORM TO SELLER’S STANDARD SPECIFICATIONS, AND WILL BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP FOR SIX MONTHS (6) MONTHS FOLLOWING THE DATE OF SHIPMENT. IF ANY OF THE GOODS ARE FOUND BY SELLER TO BE DEFECTIVE, SUCH GOODS WILL, AT SELLER’S OPTION, BE REPLACED AT SELLER’S COST. THE PARTIES HERETO EXPRESSLY AGREE THAT BUYER’S SOLE AND EXCLUSIVE REMEDY AGAINST SELLER SHALL BE FOR THE REPLACEMENT OF DEFECTIVE GOODS AS PROVIDED HEREIN. THE SOLE PURPOSE OF THE STIPULATED EXCLUSIVE REMEDY SHALL BE TO PROVIDE BUYER WITH FREE REPLACEMENT OF DEFECTIVE GOODS IN THE MANNER PROVIDED HEREIN. THE EXCLUSIVE REMEDY SHALL NOT BE DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE SO LONG AS SELLER IS WILLING AND ABLE TO REPLACE DEFECTIVE GOODS IN THE PRESCRIBED MANNER. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE NOT EXPRESSLY SET FORTH HEREIN. GOODS WHICH MAY BE SOLD BY SELLER BUT WHICH ARE NOT MANUFACTURED BY SELLER ARE NOT WARRANTED BY SELLER, BUT ARE SOLD ONLY WITH THE WARRANTIES, IF ANY, OF THE MANUFACTURERS THEREOF. THIS WARRANTY DOES NOT COVER LABOR OR OTHER COSTS OR EXPENSES TO REMOVE ANY DEFECTIVE OR REPLACED GOODS. SELLER’S WARRANTY DOES NOT APPLY TO ANY GOODS WHICH HAVE BEEN SUBJECTED TO MISUSE, MISHANDLING, MISAPPLICATION, NEGLECT, ACCIDENT, IMPROPER INSTALLATION, OR MODIFICATION. ANY CLAIM BY BUYER WITH REFERENCE TO THE GOODS SOLD HEREUNDER SHALL BE DEEMED WAIVED BY 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 THE FOREGOING WARRANTY, OR (ii) SIX (6) MONTHS FOLLOWING THE DATE OF SHIPMENT. ANY CAUSE OF ACTION FOR BREACH OF THE FOREGOING WARRANTY SHALL BE BROUGHT WITHIN ONE YEAR FROM THE DATE THE ALLEGED BREACH WAS DISCOVERED OR SHOULD HAVE BEEN DISCOVERED, WHICHEVER OCCURS FIRST.
LIMITATION OF LIABILITY. SELLER’S LIABILITY (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, OR STRICT LIABILITY) FOR ITS GOODS SHALL BE LIMITED TO REPLACING GOODS FOUND BY SELLER TO BE DEFECTIVE, OR AT SELLER’S OPTION, TO REFUNDING THE PURCHASE PRICE OF SUCH GOODS. AT SELLER’S REQUEST, BUYER WILL SEND, AT BUYER’S SOLE EXPENSE, ANY ALLEGEDLY DEFECTIVE GOODS TO THE PLANT OF SELLER WHICH MANUFACTURED THEM.
DISCLAIMER OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL SELLER BE LIABLE FOR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION BREACH OF ANY OBLIGATION IMPOSED ON SELLER HEREUNDER OR IN CONNECTION THEREWITH. CONSEQUENTIAL DAMAGES FOR PURPOSES HEREOF SHALL INCLUDE, WITHOUT LIMITATION, LOSS OF USE, INCOME OR PROFIT, OR LOSSES SUSTAINED AS THE RESULT OF RECALL, INJURY (INCLUDING DEATH) TO ANY PERSON, OR LOSS OF OR DAMAGE TO PROPERTY.
ACCEPTANCE AND TRANSPORTATION. Upon Buyer’s receipt of shipment, Buyer shall immediately inspect the Goods. Unless Buyer provides Seller with written notice of any claim for shortages of or defects in the Goods within thirty (30) days after receipt of shipment, such Goods shall be deemed finally inspected, checked and accepted by Buyer. In absence of shipping and packing instructions, Seller shall use its own discretion in choice of carrier and method of packing. Seller shall not be responsible for insuring shipments unless specifically requested by Buyer and any insurance so requested shall be at Buyer’s expenses and valuation.
TITLE AND RISK OF LOSS. Title to any Goods sold and risk of loss of such Goods passes to Buyer upon delivery by Seller to carrier, and any claim for losses or damage shall be made by Buyer directly with carrier.
CREDIT TERMS. All orders and shipments shall at all times be subject to the approval of Seller’s Credit Department. Seller reserves the right of declining to make shipment whenever, for any reason, there is doubt as to Buyer’s financial responsibility and Seller shall not in such event be liable for breach or nonperformance of contract in whole or in part.
TAXES. Unless otherwise specifically provided on the face hereof, the price for the Goods purchased is net and does not include sales, use, excise, value added, or similar taxes, whether federal, state or local, or any duties or tariffs or similar charges. The amount of any such taxes and charges applicable to the Goods shall be added to the price and paid by Buyer.
PACKAGING. Prices stated are based on Seller’s standard packaging. Seller reserves the right of packaging the Goods in pallets, bulk or individual cartons. Packaging will be standard commercial package and acceptable to commercial carrier. Packaging will be standard commercial package and acceptable to commercial carrier. Special customer packaging will be furnished only when specified and so stated herein, and the cost thereof shall be borne by Buyer. 11. DELAYS; FORCE MAJEURE. All shipping dates are approximate, and are based upon current availability of materials, present production schedules, and prompt receipt of all necessary information. Seller will not be liable for any damage, loss, fault, or expenses arising out of delays in shipment or other nonperformance of this Agreement caused by or imposed by: (a) strikes, labor disputes, fires, floods, disasters, accidents, riots, civil disorder, acts of God, (b) acts of Buyer, (c) shortages of labor, fuel, power, materials, supplies, transportation, or manufacturing facilities, (d) governmental action, (e) subcontractor delay, or (f) any other cause or condition beyond Seller’s reasonable control. In the event of any such delay or nonperformance, Seller may, at its option, and without such delay or nonperformance, Seller may, at its option, and without liability, cancel all or any portion of this Agreement and/or extend any date upon which any performance hereunder is due.
TERMINATION, CANCELLATION AND CHANGES. Orders cannot be terminated, cancelled or modified, or shipment deferred after acceptance of Buyer’s order by Seller, except with Seller’s written consent and subject to conditions then agreed upon which shall indemnify Seller against liability and expense incurred and commitments made by Seller and which shall provide for profit on work in process and contract value of products or parts completed and ready for shipment.
CONFIDENTIALITY AND INTELLECTUAL PROPERTY. All information provided by Seller to Buyer that is not otherwise available to the general public is “Confidential Information”. This Agreement does not confer upon Buyer any right or license to use any Confidential Information, including trade secrets and know how, patents, copyrights, trademarks or any other intellectual property rights of Seller except to use the Goods for their intended purpose. Buyer agrees not to reverse engineer the Goods.
GOVERNING LAW. This Agreement shall be governed by the laws of the State of Ohio. Exclusive jurisdiction and venue regarding any dispute among the parties shall be with the federal and state courts located in Cuyahoga County, Ohio.
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