Competitive Engineering Terms and Conditions.
1. GENERAL. Orders are accepted by Seller subject to these terms and conditions. In case of a conflict, inconsistency or addition not expressly accepted in writing by Seller, the terms and conditions of sale provided herein shall be considered as superseding the conflicting, inconsistent or additional terms stated in Buyer’s purchase order, order form, contract or otherwise. The acceptance of an order will supersede all prior communications and constitute a complete and binding contract between Buyer and Seller, which contract cannot be modified or canceled without the written agreement of both parties.
2. SHIPMENT. Seller shall attempt to comply with, but will not guarantee, shipping date and loading and routing instructions. Seller reserves the right to allow or prorate shipments against all orders whenever, in its judgment, an oversold condition exists as to any particular product manufactured or sold by it. In the event of a default by Buyer, Seller may decline to make further shipments without waiving any of its rights under such order. If, despite such default, Seller elects to continue to make shipment, its action shall not constitute a waiver regarding or otherwise diminish Seller’s legal remedies with respect to such default or any future default.
3. TITLE AND DELIVERY. All sales are made FCA factory, Incoterms 2000 and Buyer shall pay all freight, duties, cartage and handling. Title and risk of loss or damage shall pass from Seller to Buyer upon Seller’s putting the material purchased hereunder in good condition into the possession of a common carrier, such carrier acting as Buyer’s agent. All claims for damages must be filed with the carrier.
4. PRICES. Irrespective of any prices quoted by Seller or listed Buyer’s order, an order is accepted only at the prices shown on the written quotation. Installation of utilities required for equipment is not included in the specified price.
5. PAYMENT TERMS. Invoices are payable at the place set forth on the written quotation or the invoice. Any exchange charges, any charges for nonpar clearance of checks or collection charges (including reasonable attorneys’ fees) will be paid by Buyer. Any amounts not paid when due will bear interest at a rate of 18% per annum or, if lower, the maximum rate permissible by law. Terms of payment are subject to change by Seller. All orders are subject to credit approval by Seller. The terms or amount of any credit extended by Seller to Buyer may be changed, and such credit may be withdrawn by Seller. With respect to an order on which credit is not extended by Seller or, if extended, is subsequently withdrawn, shipment or delivery shall be made, at Seller’s election, Cash with Order (in whole or in part), C.O.D. or Sight Draft attached to Bill of Lading or other shipping documents, with all costs of collection (plus 18% interest on Sight Drafts not paid at maturity) for the account of Buyer. If, in the judgment of Seller, the financial condition of Buyer does not justify continuation of production or shipment on the terms of payment originally specified, Seller may require full or partial payment in advance. In the event any proceeding is brought by or against Buyer under any bankruptcy or insolvency laws, Seller shall be entitled, in addition to any other remedies at law or in equity, to (i) stop or divert any shipment in transit, (ii) cancel any order then outstanding and/or (iii) receive reimbursement for its cancellation charges. Each shipment shall be considered a separate independent transaction, and payment therefore shall be made accordingly. If for any reason Buyer is not prepared to accept delivery of goods, Seller may store the goods at Buyer’s expense and risk in the name of Buyer, and such storage shall constitute shipment and delivery to Buyer.
6. TAXES. Quoted prices do not include federal, state or local excise, sales, use or similar taxes. Accordingly, in addition to the prices specified on the written quotation, the amount of any applicable excise, sales, use and/or similar taxes will appear as separate items on the invoice and will be paid by Buyer unless prior to shipment Seller receives an appropriate tax exemption certificate from Buyer.
7. CUSTOMER SITE ACCEPTANCE (CSA). If Seller’s quotation references CSA provisions, then Buyer agrees to accept the purchased equipment in accordance with such CSA provisions. The parties agree to give priority to achieving CSA and Buyer agrees that the purchased equipment shall not be used for material production, for development of new processes or for any purposes other than achieving CSA, prior to successful completion or waiver of the CSA provisions. Any such use of the equipment prior to successful completion of the CSA provisions shall be deemed to constitute CSA. The parties agree that, if CSA procedures have not been commenced within 30 days after delivery (through no fault of Seller), then the equipment shall be deemed to have achieved CSA. It is the responsibility of the Buyer to ensure that all the required facilities are ready for successful commencement of CSA on delivery of the tool. The parties agree that, if CSA have not been commenced within30 days after delivery and completed within 60 days after delivery, (through no fault of seller), the equipment shall be deemed accepted and achieved CSA.
8. FORCE MAJEURE. Seller shall not be liable failure to perform occasioned by strikes, lockouts, labor difficulties, riots, inability or difficulty in obtaining or procuring supplies, labor or transportation, fires, storms, floods, earthquakes, explosions, accidents, acts of God, interference by civil or military authorities, whether legal or de facto, acts of the public enemy, war, rebellion, insurrection, sabotage, embargoes, orders given priority by any public authority or any other cause beyond the reasonable control of Seller.
9. INTELLECTUAL PROPERTY MATTERS; REMEDIES. If a third party claims that the purchased equipment infringes that party’s patent, trademark, trade name, trade dress or copyright, or is alleged to violate a third party’s claimed trade secret, Seller agrees, subject to the terms and conditions stated in this paragraph, to defend Buyer against that claim and to pay all costs, damages and attorneys fees that a court finally awards, provided that Buyer: (a) promptly notifies Seller in writing of the claim and (b) allows Seller to control, and cooperates with Seller in the defense and any related settlement negotiations. If such a claim is made or appears likely, Seller, at its option, may attempt to obtain a license to enable Buyer to continue to use the product, may modify the product or may replace it with one that is functionally equivalent. If Seller determines that none of these alternatives is reasonably available and commercially practicable, Buyer agrees to return the product to Seller upon Seller’s written request, in which case Seller will credit Buyer with an amount equal to the price paid for such product less a reasonable amount for depreciation. Notwithstanding any other provision in this agreement, Buyer’s remedy, and Seller’s liability, shall be limited solely to repair, replacement or adjustment as determined by Seller. Seller shall not be liable for any claim based on (i) anything Buyer provides which is incorporated into a product, (ii) Buyer’s modification of a product or use thereof other than in its specified operating environment, or (iii) the combination, operation or use of a product with products provided by other manufacturers or other products not provided by Seller as a system. In no event will Seller’s liability under this paragraph exceed the purchase price of the respective product. This is the exclusive warranty of Seller with respect to intellectual property matters and is in lieu of all other warranties, express or implied. Sale of products or parts thereof does not confer on Buyer any license relating to (a) the structure of any devices to which the products or parts may be applied or (b) a process or machine in connection with which they may be used.
9.1. TRADE SECRETS. The Buyer will not divulge or transfer to third parties any technical documentation, fabrication or maintenance support knowledge for product processes, process equipment, tooling, or proprietary and/or specialized designs created by the Seller, or any other knowledge or information which is comprised in whole or in part of, or contains, Seller’s confidential or propriety information, or is protected by a Non-Disclosure Agreement between Buyer and Seller.
10. RESCHEDULING. A fee will be applied if customer requested change in delivery dates results in additional costs incurred, ie: expedite material, overtime charges, etc.
In the event of cancellation by Buyer of any order, Buyer shall pay Seller a cancellation and re-stocking charge based upon the timing of the cancellation notice as follows:
Cancellation Notice Given Cancellation Fee Equals
X Days Before Confirmed the Following Percentage
Shipment Date of Order of Purchase Price:
More than 90 days – 35%
61 – 90 days – 50%
0 – 30 days – 100%
Higher cancellation charges, up to the full value of the order, may apply in the case of special, custom or modified equipment.
12. ASSIGNMENT. Buyer shall not assign this order or any portion thereof without the prior written consent of Seller.
13. LIMITED WARRANTY. Seller warrants to the original Buyer that new equipment will be free of defects in material and workmanship for a period of one year commencing (x) on final acceptance or (y) 90 days from shipping, whichever occurs first. This warranty covers the cost of parts and labor (including, where applicable, field service labor and travel required to restore the equipment to normal operation). Seller warrants to the original Buyer that replacement parts will be new or of equal functional quality and warranted for the remaining portion of the original warranty or 90 days, whichever is longer. Seller warrants to the original Buyer that software will perform in substantial compliance with the written materials accompanying the software. Seller does not warrant uninterrupted or error-free operation. Seller’s obligation under these warranties is limited to repairing or replacing at Sellers option defective non-expendable parts or software. These services will be performed, at Sellers option, at either Sellers facility or Buyers business location. For repairs performed at Sellers facility, Buyer must contact Seller in advance for authorization to return equipment and must follow Sellers shipping instructions. Freight charges and shipments to Seller are Buyers responsibility. Seller will return the equipment to Buyer at Sellers expense. All parts used in making warranty repairs will be new or of equal functional quality. The warranty obligation of Seller shall not extend to defects that do not impair service or to provide warranty service beyond normal business hours, Monday through Friday (excluding Seller holidays). No claim will be allowed for any defect unless Seller shall have received notice of the defect within thirty days following its discovery by Buyer. Also, no claim will be allowed for equipment damaged in shipment sold under standard terms of FCA factory, Incoterms 2000. Within thirty days of Buyers receipt of equipment, Seller must receive notice of any defect which Buyer could have discovered by prompt inspection. Products shall be considered accepted 30 days following (a) installation, if Seller performs installation, or (b) shipment; unless written notice of rejection is provided to Seller within such 30-day period.
EXPENDABLE ITEMS, INCLUDING, BUT NOT LIMITED TO, FILTERS, LAMPS, PILOT LIGHTS FILAMENTS, FUSES, ELECTRIC MOTORS, ENCODERS, MECHANICAL PUMP BELTS, V BELTS, WATER TRANSPORT BELTS, PUMP FLUIDS, O RINGS AND SEALS ARE SPECIFICALLY EXCLUDED FROM THE FOREGOING WARRANTIES AND ARE NOT WARRANTED. All used equipment is sold AS IS, WHERE IS, WITHOUT ANY WARRANTY, EXPRESSED OR IMPLIED. With the exception of manufacturing defects, regular maintenance on pumps or other components is excluded from this warranty. Specifically excluded from this warranty is all stand-alone computer and data storage equipment not manufactured by Seller (such as computers, monitors, printers and printer buffers). Such equipment will carry only the original manufacturer’s warranty. Seller assumes no liability under the above warranties for equipment or system failures resulting from (1) abuse, misuse, modification or mishandling; (2) damage due to forces external to the machine including, but not limited to, acts of God, flooding, power surges, power failures, defective electrical work, transportation, foreign equipment/attachments or Buyer-supplied replacement parts or utilities or services such as gas; (3) improper operation or maintenance or (4) failure to perform preventive maintenance in accordance with Sellers recommendations (including keeping an accurate log of preventive maintenance). In addition, this warranty does not apply if any equipment or part has been modified without the written permission of Seller or if any Seller serial number has been removed or defaced. No one is authorized to extend or alter these warranties on Sellers behalf without the written authorization of Seller.
THE ABOVE WARRANTIES ARE EXPRESSLY IN LIEU OF ANY OTHER EXPRESS OR IMPLIED WARRANTIES (INCLUDING THE WARRANTY OF MERCHANTABILITY AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE), AND OF ANY OTHER OBLIGATION ON THE PART OF SELLER. SELLER DOES NOT WARRANT THAT ANY EQUIPMENT OR SYSTEM CAN BE USED WITH ANY PARTICULAR PROCESS OTHER THAN THAT COVERED BY THE APPLICABLE PUBLISHED SPECIFICATIONS.
14. NO CONSEQUENTIAL DAMAGES. LIMITATION OF LIABILITY. Seller shall not be liable for consequential damages, for anticipated or lost profits, incidental, indirect, special or punitive damages, loss of time, loss of use, or other losses, even if advised of the possibility of such damages, incurred by Buyer or any third party in connection with the equipment, products or services provided by Seller. In no event will Sellers liability in connection with the equipment, products or services provided by Seller exceed the amounts paid to Seller by Buyer hereunder, except as otherwise expressly provided herein.
15. NON-SOLICITATION. Buyer agrees, during the continuation of this agreement and for a period of three years thereafter, not to solicit the employment of any employee of Seller who has come into contact with Buyer in connection with the products and/or services provided to Buyer hereunder.
16. COMPLIANCE WITH LAWS. All quotations by Seller and all purchase orders are subject to compliance with all applicable laws, including, without limitation, the export control laws of the United States of America.
17. DISPUTES. In case of a dispute, the parties agree to binding arbitration by one arbitrator selected by mutual consent of the parties, to be held in Tucson, Arizona under the Rules of the American Arbitration Association.
18. ATTORNEY FEES. In any litigation, arbitration or other proceeding by which one party either seeks to enforce its rights under this Agreement or seeks a declaration of any rights or obligations under this Agreement, the prevailing party shall be awarded reasonable attorney fees, together with any costs and expenses incurred.
19. SEVERABILITY. In the event any portion of this Agreement is declared illegal, unenforceable, invalid or void by a court of competent jurisdiction, such portion shall be severed from this Agreement, and he remaining provisions shall remain in full force and effect.
20. AMENDMENT. This Agreement may be amended or modified only by mutual written agreement signed by both parties.
21. APPLICABLE LAW. The contract created hereby shall be interpreted and construed under the laws of the State of Arizona, without regard to the choice of law provisions thereof and not including the U.N. Convention on Contracts for the International Sale of Goods, if otherwise applicable.