TERMS AND CONDITIONS:
The following Terms and Conditions apply to transactions conducted between Purchaser and Pemberton Fabricators, Inc. unless Pemberton Fabricators, Inc. agrees in writing to any modification. By proceeding with the transaction, Purchaser accepts these Terms and Conditions.
TERMS:
Net 30 days. A "late payment" charge of 2% per month will be made on all monies due more than 30 days after invoicing. Invoice will be submitted when the equipment is shipped. Attention to these terms will eliminate delays in starting up the equipment. NOTE: Terms pending credit approval.
TAXES:
The quoted prices do not include state or local sales, duties, use, excise or similar taxes. To avoid any inconvenience, please supply us with one of the following documents:
1. A tax exemption certificate from your state or
2. A statement on your order or letterhead that your firm will pay the appropriate state use tax in accordance with the current tax laws of your state.
Unless we are provided with one of these documents, any such taxes imposed upon Pemberton Fabricators, Inc. will be added to our invoice by a separate item.
WARRANTY:
Pemberton Fabricators, Inc. fully warrants that the product supplied shall conform to the description in the quotation and agrees to repair or replace F.O.B. shipping points, any parts excepting expendable items such as filters and lights that fail due to defects in material or workmanship within one year of use or 18 months after shipment, whichever occurs first. Other than those expressively stated herein, THERE ARE NO OTHER WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, AND SPECIFICALLY EXCLUDED BUT NOT BY WAY OF LIMITATION, ARE THE IMPLIED WARRANTIES OF FITNESS FOR PARTICULAR PURPOSE AND MERCHANTABILITY.
IT IS UNDERSTOOD AND AGREED THAT PEMBERTON FABRICATORS, INC.’S LIABILITY WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE SHALL NOT EXCEED THE COST OF REPAIR OR REPLACEMENT, F.O.B. SHIPPING POINTS, OF DEFECTIVE PARTS. UNDER NO CIRCUMSTANCES SHALL PEMBERTON FABRICATORS, INC. BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. THE PRICE STATED FOR THE EQUIPMENT IS A CONSIDERATION IN LIMITING PEMBERTON FABRICATORS, INC.’S LIABILITY. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS OF THIS AGREEMENT MAY BE BROUGHT BY PURCHASER MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
THE WARRANTY FOR THE EQUIPMENT PROPOSED IN THIS QUOTATION IS AS STATED IN THE ABOVE PARAGRAPHS. IT IS NOT RE‑STATED‑‑NOR DOES IT APPEAR IN ANY OTHER FORM.
PATENT INDEMNITY:
In the event of a claim against the Purchaser which charges that the equipment purchased from Pemberton Fabricators, Inc. infringes a U.S. patent subsisting when the equipment was shipped, Pemberton Fabricators, Inc. shall, at its sole option, procure for the Purchaser the right to use the equipment; or replace the equipment with non-infringing equipment; or modify the equipment to be non-infringing; or remove the equipment and refund the purchase price, less depreciation, at the rate of fifteen percent (15%) per year; or defend, at its own expense, all suits instituted against the Purchaser insofar as same are based upon any claim that the Purchaser's operation of the equipment, or any part thereof, is an infringement of a U.S. patent under the proviso that: (a) Pemberton Fabricators, Inc. be notified, in writing, by Purchaser promptly upon assertion of claim; (b) Pemberton Fabricators, Inc. is given authority by Purchaser to assume full and exclusive control of the defense and settlement of the claim or suit; and (c) Purchaser provides all information and assistance to Pemberton Fabricators, Inc. at Purchaser's expense, as is reasonably necessary for the defense of the claim or suit. Pemberton Fabricators, Inc. may, at its option, intervene in any suit or action brought against the Purchaser on such claim.
THE FOREGOING STATES PEMBERTON FABRICATORS, INC.’S ENTIRE LIABILITY FOR CLAIMS OR PATENT INFRINGEMENT. Pemberton Fabricators, Inc. shall have no liability whatsoever if the claim of infringement arises out of Pemberton Fabricators Inc.'s compliance with Purchaser's specifications. Pemberton Fabricators, Inc. shall have no liability whatsoever if a claim of infringement is based upon the Purchaser's use of the equipment as part of a patented combination where the other elements of the combination are not supplied by Pemberton Fabricators, Inc., or in the practice of a patented process.
SECURITY INTEREST:
Pemberton Fabricators, Inc. will retain a security interest in the equipment described on this document until the full purchase price and any charges enumerated on the invoice are paid. If the equipment was leased from Pemberton Fabricators, Inc. immediately prior to purchase, Pemberton Fabricators, Inc. retains a security interest in the equipment until the purchase option price and the monthly lease charges payable under the lease agreement have been paid. The customer's failure to pay any amounts when due will give Pemberton Fabricators, Inc. the right to possession and removal of the equipment at any time upon giving at least 10 days prior written notice. Pemberton Fabricators Inc.'s taking of such possession will be without prejudice to any other remedies Pemberton Fabricators, Inc. may have. The title to the equipment will pass to the customer upon shipment from Pemberton Fabricators, Inc. except that title to leased equipment which is installed and being purchased under any schedule enumerated in a lease will pass to the customer upon Pemberton Fabricators, Inc.’s receipt of full payment of the purchase option price, all lease charges payable under the lease agreement and any other amounts enumerated in the lease or purchase order. At the request of Pemberton Fabricators, Inc., the customer will join with Pemberton Fabricators, Inc. in executing one or more financing statements or other documents reasonably required by Pemberton Fabricators, Inc. to protect the Pemberton Fabricators, Inc.’s security interest in a form satisfactory to Pemberton Fabricators, Inc.
INSURANCE:
Buyer represents that they have a program of insurance which adequately protects their interest, and that of their employees and agents, including damage to plant, property and equipment, personal injury of any kind, directly or indirectly related in any way to the equipment, service, repair or parts by Seller. Accordingly, Buyer waives any claim against Seller for the foregoing, and on behalf of its Insurance Company, any right of subrogation in connection therewith.
LAW:
This Agreement shall be governed by the internal laws of the State of New Jersey, USA, and any claims arising hereunder shall be prosecuted in the United States District Court having jurisdiction of causes of action arising in the District in which Pemberton Fabricators, Inc. is located.
ADDITIONAL TERMS AND CONDITIONS (DOCUMENT #P1003A) UPDATED 12/09/04
The Buyer represents and warrants to the seller that to Buyer's actual or constructive knowledge:
(1) neither Buyer (including its directors and officers), nor any of its affiliates, subsidiaries, respective shareholders, beneficial owners of non-publicly traded shareholders or, to Buyer's knowledge, the funding sources for any of the foregoing is identified on any of the "Denied Parties" list as defined below; (2) neither Buyer nor any affiliates, subsidiaries, respective shareholders, beneficial owners of non-publicly traded shareholders is directly or indirectly owned or controlled by the government of any country that is subject to an embargo or economic sanctions by the United States government; (3) neither Buyer nor any affiliates, subsidiaries, respective shareholders, beneficial owners of non-publicly traded shareholders is acting on behalf of a government of any country that is subject to such embargo or economic sanction and (4) neither Buyer nor any of its affiliates, subsidiaries, respective shareholders, beneficial owners of non-publicly traded shareholders is involved in business arrangements or otherwise engaged in transactions with countries subject to economic or trade sanctions imposed by the United States government. Buyer agrees that it will notify seller in writing immediately upon the occurrence of any event which would render the foregoing representations and warrantees of this provision incorrect. NotwithStanding anything to the contrary in this agreement, no transfer (including the sale, lease, assignment or transfer In any way of any direct or indirect interest in this agreement or direct or indirect Interest in the
Buyer) shall be made to any person or entity on any of the "Denied Parties" lists (as defined below) or to an entity in which a person or entity on any of the "Denied Parties" lists has an interest.
For purposes of this agreement, "Denied Parties" means (i) any person or entity listed in any of the following lists, (ii) any person or entity described in Section 1 of U.S. Executive Order 13224, issued on September 23, 2001, or (iii) any person or entity otherwise identified by government or legal authority as a person with whom Pemberton Fabricators, Inc. is prohibited from transacting business.
"Specially Designated Nationals or Blocked Persons" ("SDNs") maintained by the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) "Denied Persons List" maintained by the U.S. Department of Commerce's Bureau of Industry and Security (BIS) "Unverified List" maintained by the U.S. Department of Commerce's Bureau of Industry and Security (BIS) "Entity List" maintained by the U.S. Department of Commerce's Bureau of Industry and Security (BIS) "Debarred List" maintained by the U.S. Department of State's Office of Defense Trade Controls
Links to the above lists can be found at www.bis.doc.gov. In the left: column under "Key Resources" click on "Lists to Check".
