ENTIRE AGREEMENT: The terms and conditions hereof, together with the provisions on the face hereof with respect to description, quantity and price of goods ordered and delivery terms, shall constitute the entire agreement between the “Purchaser” and Advanced Systems and Designs (ASDQMS), (“Seller”), and any representations, and course of prior dealings, promise or condition in connection herewith or usage of the trade not incorporated herein, shall not be binding on Seller. No waiver, alteration or modification of any of the provisions hereof shall be binding, unless in writing and signed by a specifically authorized representative of Seller.
ANY ATTEMPTED ACKNOWLEDGEMENT OF THIS SALE BY A PURCHASE ORDER OR OTHER DOCUMENT CONTAINING TERMS AND CONDITIONS INCONSISTENT WITH OR IN ADDITION TO THE CONDITIONS CONTAINED HEREIN SHALL NOT BE BINDING UPON SELLER AND SELLER HEREBY EXPRESSLY OBJECTS TO AND REJECTS THE SAME. UNLESS OTHERWISE AGREED BY THE PARTIES IN WRITING, SELLER’S ACCEPTANCE OF PURCHASER’S ORDER REQUEST IS EXPRESSLY MADE CONDITIONAL ON PURCHASER’S AGREEMENT TO THE TERMS AND CONDITIONS CONTAINED HEREIN.
PRICE: All prices for goods to be delivered more than 30 days from the date of the acknowledgment on the face hereof shall be subject to change upon cost changes incurred by Seller. Prices quoted are based upon production quantity; if order quantity, release quantity or release schedules change, the price for goods is subject to adjustment by Seller. All costs specified herein as borne by Purchaser shall be in addition to the quoted price. All bills shall be dated the date of shipment. Except when agreed upon otherwise, upon approved credit, payment shall be due at time of order or as stated on the quote, order acknowledgement, or invoice. Seller reserves the right at any time to require full or partial payment in advance. A late charge of 1-1/2% per month will be charged on the unpaid balance of overdue invoices. If shipments are delayed by Purchaser, payments shall become due from the date when Seller is prepared to make shipment, unless otherwise agreed to in writing. Goods held for Purchaser shall be at the risk and expense of Purchaser. Unless otherwise indicated, installation and training charges shall be invoiced separately.
SHIPMENT, PLACE OF DELIVERY AND RETENTION OF TITLE: Goods covered by this contract are sold Ex Works (“EXW”) (as that term is defined and used in Incoterms 2010, as agreed from time to time) Chagrin Falls, Ohio (unless otherwise indicated in writing), and Seller’s placement of such goods in the possession of a trucking company or other common carrier shall constitute delivery to Purchaser and risks of loss or damage in transit shall be borne by Purchaser; provided, however, all goods delivered shall remain the property of Seller until such time as all claims, including any balances, which Seller may have against Purchaser for any reason whatsoever have been satisfied. If such retention of title would be void under the laws enforced at the place where the goods are located, Seller reserves and Purchaser grants to Seller a security interest in all goods sold and all proceeds thereof to secure the full payment and performance by Purchaser of its liabilities and obligations to Seller. If any action on the part of Purchaser is required to effect such security interest, Purchaser shall be obligated to take all measures necessary to effect and preserve the same. Freight charges shall be pre-paid by Seller and added to Purchaser’s invoice unless otherwise agreed to in writing. Excess shipping and/or transportation charges resulting from compliance with Purchaser's request with respect to the use of any agency or method of transportation or any routing other than that which would otherwise have been designated by Seller shall be paid by Purchaser.
SELLER’S DEFAULT OR DELAYS: Processing and shipment of orders are subject to strikes, fires, floods, accidents, riots or other factors beyond Seller’s reasonable control. Seller shall not be liable for any loss or delay resulting from these factors beyond Seller’s reasonable control.
CANCELLATION: Purchaser may not cancel or revise any order accepted by Seller without prior written consent of Seller. Upon cancellation or revision of an order, Purchaser shall pay Seller all costs reasonably and necessarily incurred in reliance upon the initial order received by Seller, including but not limited to costs relating to work-in-process, unused raw material, engineering, and tooling up to the total cost of the purchase order. All such charges will be determined by Seller in its sole discretion at the time of cancellation or revision by Purchaser. Seller has the right to cancel any order if Purchaser: (a) becomes insolvent; (b) files a voluntary petition in bankruptcy; (c) has an involuntary petition in bankruptcy filed against it; (d) has a receiver or trustee appointed for it; (e) makes an assignment for the benefits of creditors; or (f) breaches this or any other agreement with Seller.
PURCHASER’S DUTY TO INSPECT AND NOTIFY SELLER OF DEFECTS: Purchaser shall fully inspect the goods upon receipt. Within five days after Purchaser’s receipt of the goods, Purchaser shall give written notice to Seller of any claim that the goods are defective in any manner, where such defect is ascertainable upon adequate inspection. In such written notice, Purchaser shall specify in detail the basis for all claims against Seller. The costs and expense of such inspection shall be borne solely and exclusively by Purchaser. If Purchaser fails either to inspect the goods or to send Seller written notice of all claims within five days after receipt, Purchaser shall be conclusively deemed to have waived any claims against Seller based upon, arising out of, or related to any defect that was ascertainable upon adequate inspection of the goods.
WARRANTY AND LIMITATION OF LIABILITY: SELLER warrants that the products and services furnished to Purchaser shall be free from defects in material and workmanship. The warranty period will be measured from SELLER’s shipment date and is ONE YEAR, except for products where a warranty is otherwise stated. If a product or service is proven not to have met SELLER’s warranty, then SELLER’s sole obligation and Purchaser’s EXCLUSIVE REMEDY will be, at SELLER’s option, to repair or replace the products, perform the services again or refund the amount which Purchaser paid for the non-conforming products or services. SELLER has no obligation for any product that has been modified or damaged through misuse, accident, neglect, mishandling, improper maintenance or subsequent modification or alteration by anyone other than SELLER.
THIS WARRANTY IS MADE IN LIEU OF ALL OTHER WARRANTIES, RIGHTS, OR CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING FROM A COURSE OF DEALING, CUSTOM OR USAGE OF TRADE. PURCHASER IS RESPONSIBLE FOR DETERMINING IF A PRODUCT FITS PURCHASER’S PARTICULAR PURPOSE AND IS SUITABLE FOR PURCHASER. SELLER BEARS NO LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLER SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION OR OTHER PECUNIARY LOSS) ARISING OUT OF DELAY IN SELLER’S PERFORMANCE, OR THE USE OR INABILITY TO USE PRODUCTS OR SERVICES PROVIDED TO PURCHASER, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SELLER’S CUMULATIVE LIABILITY FOR ANY CLAIM, ACTION OR DAMAGE, WHETHER ARISING IN CONTRACT, TORT OR STRICT LIABILITY, EXCEED THE TOTAL AMOUNT WHICH PURCHASER PAID FOR THE AFFECTED PRODUCTS OR SERVICES REGARDLESS OF WHETHER THE CONTRACT HAS BEEN BREACHED.
No goods or are to be returned to Seller without its written authorization. There will be a 20 percent (20%) restocking fee in addition to any shipping costs incurred as well as Seller’s technician’s expense and repair costs, if applicable for any accepted returned product. No product made to Purchaser’s specifications may be returned for any reason unless Seller deems a material defect or faulty workmanship. If warranty service is required at Purchaser’s location, labor and travel charges shall apply. Seller shall not be liable for any expense incurred by Purchaser in order to remedy any defect in its goods. Title to all goods that have been replaced shall thereafter vest in Seller, where Purchaser had previously acquired title pursuant to the provisions hereof. If goods furnished to Purchaser's specifications are used or combined by Purchaser with other products or items not furnished herein, Purchaser shall indemnify and hold harmless Seller from all claims resulting from the use or incorporation of such goods in Purchaser's product.
EXPORT AND IMPORT CONTROLS: Purchaser acknowledges and agrees that the ultimate destination of the goods is in the United States, unless otherwise agreed to in writing. Purchaser shall not authorize or permit its employees, distributors, customers, brokers, freight forwarders, and/or agents to export or re-export any of the goods to any foreign person without complying with applicable import and export laws and regulations of Purchaser’s country and of the United States, including the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR). Purchaser agrees to obtain and properly utilize U.S. Government export authorization prior to exporting or re-exporting the goods, either in their original form or after being incorporated into other end-items.
CLAIMS: Claims for error in weight or shortage of goods must be presented to Seller in writing within five days from the date of receipt of the goods and must state the shipping slip number and claim of shipment. Any claim for error in weight or shortage of goods not presented in accordance with this subsection will be conclusively deemed waived by Purchaser.
INTELLECTUAL PROPERTY; PATENT INDEMNITY: Purchaser acknowledges that the goods contain valuable ideas, designs, processes, inventions, patents, research and development, formulas, technologies, copyrights, trademarks, trade secrets, marketing and business ideas, know-how, data, computer hardware or software, and/or other intellectual property rights of Seller (“Intellectual Property”). Seller reserves all rights in the Intellectual Property and Purchaser agrees to use such Intellectual Property only in conjunction with the use or operation of such goods and only in accordance with any applicable instructions and manuals furnished by Seller, its suppliers or licensors, if applicable. As such, no title to or ownership of any Intellectual Property related to any goods is transferred to Purchaser pursuant to this agreement unless specifically authorized in writing by Seller. Purchaser will not attempt to reverse engineer any goods or any component thereof or to otherwise misappropriate, circumvent or violate any of Seller’s intellectual property rights. Notwithstanding the provisions of this paragraph, Purchaser will hold Seller harmless against any expense or loss resulting from infringement of patents or trademarks arising from its non-compliance with Seller’s designs or specifications or instructions.
CONFIDENTIAL INFORMATION: Seller may require Purchaser to enter into a Confidentiality and/or Non-Disclosure Agreement in order to facilitate any sale of goods or provision of services. In the event Seller and Purchaser enter into a Confidentiality and/or Non-Disclosure Agreement, the terms of that agreement apply to these terms and conditions and are specifically incorporated herein. In the event Seller and Purchaser do not execute a Confidentiality and/or Non-Disclosure Agreement, Purchaser shall not improperly use or make available, sell, disclose or otherwise communicate to any third party any information generally not known outside of Seller, including information contained in oral communications, as well as in any tangible expressions referring or relating, but not limited to the Intellectual Property, other techniques, inventions, innovations, patent applications, discoveries, improvements, formats, test results, research projects, manuals, specifications, documentation, notes, industry contacts, information about costs, profits, markets, sales, contracts, lists of customers, lists of distributors, business, marketing, and strategic plans, forecasts, unpublished financial information, budgets, projections, and customer identities, characteristics and agreements (“Confidential Information”). Confidential Information is to be broadly defined, and includes all information that has or could have commercial value or other utility in the business in which Seller is engaged or contemplates engaging, and all information of which the unauthorized disclosure could be detrimental to the interests of Seller, whether or not such information is identified as Confidential Information by Seller. Except as otherwise required by law, neither party shall issue any press release or make any public statement regarding the transaction contemplated by this agreement, without prior written approval of the other party. The provisions of this paragraph shall survive termination of this agreement.
NO USE OF NAME OR TRADEMARKS: Purchaser shall not at any time use Seller's name or any Seller logo, trademark, service marks, or trade name in any advertising or publicity without the prior written consent of Seller.
TECHNICAL ADVICE: Unless otherwise specifically agreed in writing, neither Seller nor any representative of Seller is responsible for application or supervision of application of the goods. Any supervision or technical advice or assistance furnished other than pursuant to such written agreement does not create any liability on behalf of Seller for any supervision, advice or assistance given or results obtained.
CORRECTIONS: Typographical or clerical errors contained in this agreement, including prices, are subject to correction by Seller.
TAXES: Prices specified do not include sales, excise or other taxes arising out of or relating to this order or the goods delivered except as otherwise specifically stated on the face hereof. All such taxes are the responsibility of Purchaser; if Purchaser claims it is exempt from tax, it shall provide Seller with a tax exemption certificate acceptable to the taxing authorities.
INJUNCTIVE RELIEF: Purchaser acknowledges that failure to carry out any obligation under this agreement, or a breach by Purchaser of any provision herein, shall constitute immediate and irreparable damage to Seller, which cannot be fully and adequately compensated in money damages and which will warrant preliminary and other injunctive relief, an order for specific performance, and other equitable relief. Purchaser further agrees that no bond or other security shall be required in obtaining such equitable relief and Purchaser hereby consents to the issuance of such injunction and to the ordering of specific performance. Purchaser also understands that other action may be taken and remedies enforced against Purchaser.
MISCELLANEOUS: These Terms and Conditions of Sale shall be construed under and governed by the laws of the State of Ohio without regard to the rules regarding conflict of laws. If any provision is held to be illegal, invalid or unenforceable, the remaining provisions shall not in way be affected or impaired thereby. A waiver by Seller of any terms and conditions herein shall not be deemed to be a continuing waiver but shall apply solely to the instance of the waiver, and only apply to sections specified in the waiver. All other provisions of these TERMS and CONDITIONS shall remain in force.