PEMBERTON FABRICATORS, INC. (SELLER) INCLUDING THE DIVISIONS OF AMERIND
AND SERAPHIN TEST MEASURE STANDARD CONDITIONS OF SALE (01/16/15)
EXCLUSIVE AND ENTIRE: The following Standard Terms and Conditions are intended by the parties to govern all the purchases of equipment, parts or service from Seller, and together with the specifications provided or embodied herewith, represent the entire understanding of the parties without exception. All other terms and conditions are specifically rejected, and by proceeding with the transaction in any manner, both Seller and Buyer agree that these Standard Terms and Conditions shall control. The price charged by Seller is based on these Standard Terms and Conditions.
DOMESTIC TERMS TERMS: Net 30 days. A “late payment” in the form of interest at the rate of 2% per month or a service charge of like amount will be levied on all late payments (the type of charge being consistent with the applicable local law). Invoices will be submitted when the equipment, part, service is supplied. Attention to these terms will eliminate delays in starting up any equipment or providing further service or parts. NOTE: Terms pending credit approval.
INTERNATIONAL TERMS: Advanced payment (wire transfer, credit card, or cash in advance) or confirmed letter of credit.
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:
- A tax exemption certificate from your state or
- 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 Seller will be added to our invoice by a separate item.
WARRANTY: Seller 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 SELLER’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 SELLER BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. THE PRICE STATED FOR THE EQUIPMENT IS A CONSIDERATION IN LIMITING SELLER’S LIABILITY. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS OF THIS AGREEMENT MAY BE BROUGHT BY BUYER 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.
LIMITATION OF LIABILITY: SELLER’S TOTAL AGGREGATE LIABILITY (ARISING OUT OF OR IN CONNECTION WITH BUT NOT LIMITED TO ANY BREACH OF CONTRACT, NEGLIGENCE, TORT, LIQUIDATED DAMAGES, SPECIFIC PERFORMANCE, TERMINATION, CANCELLATION INCLUDING THE REPAYING OF THE CONTRACT PRICE OR PARTS THEREOF, FUNDAMENTAL BREACH, BREACH OF WARRANTIES, MISREPRESENTATION, NONPERFORMANCE, NONPAYMENT, OR ANY OTHER) WHETHER BASED IN CONTRACT, IN TORT, IN EQUITY, ON STATUE, AT LAW OR ON ANY OTHER THEORY OF LAW, SHALL NOT EXCEED THE PAID CONTRACT PRICE. THE BUYER ACKNOWLEDGES THAT THE REMEDIES PROVIDED IN THIS CONTRACT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REMEDIES AVAILABLE TO THE BUYER AT LAW, IN CONTRACT, IN TORT, IN STATUTE OR IN EQUITY OR IN ANY OTHER THEORY OF LAWS.
PATENTS: Seller agrees to indemnify Purchaser against any proven claim and assessed liability for infringement of any United States patent arising from the manufacture or sale of any apparatus furnished by Seller to Purchaser. THE FOREGOING STATES SELLER’S ENTIRE LIABILITY FOR CLAIMS OR PATENT INFRINGEMENT. Seller shall have no liability whatsoever if the claim of infringement arises out of Seller’s compliance with Purchaser’s specifications. Any parts which Seller does not manufacture are not hereby covered. Seller 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 Seller, or in the practice of a patented process. Where the specifications, process, design are supplied by Purchaser, then Purchaser agrees to indemnify Seller in like manner.
THE FOREGOING STATES SELLER’S ENTIRE LIABILITY FOR CLAIMS OR PATENT INFRINGEMENT. Seller shall have no liability whatsoever if the claim of infringement arises out of Seller’s compliance with Buyer’s specifications. Seller shall have no liability whatsoever if a claim of infringement is based upon the Buyer’s use of the equipment as part of a patented combination where the other elements of the combination are not supplied by Seller, or in the practice of a patented process.
PROPRIETARY RIGHTS: Unless otherwise stated herein all design, manufacturing processes, manufacturing information, vendor sources, know-how, equipment, tooling or other hardware, software, or information (collectively referred to as “resources”) acquired or utilized by the Seller to produce the finished goods, and any intellectual property rights, including but not limited to patents, copyrights and trade secrets related in any way to the resources, are and shall hereinafter remain the exclusive property of the Seller, regardless of whether such resources are created solely by the Seller, or by Buyer’s collaboration with the Seller, for example, where Seller utilizes Buyer’s specifications to create resources, and the Buyer shall acquire or receive no rights or title therein or thereto as a result of this purchase whether or not the order provides for Seller’s delivery of technical data, drawings or other information to the Buyer in addition to the finished goods. Unless Seller’s prior written consent is given, in no event shall the Buyer permit such data, drawings or information to be: (1) disclosed to any third party other than the Buyer’s customer; (2) used by the Buyer or the Buyer’s customer for manufacture of like or similar goods; (3) used for purposes of duplicating or reverse-engineering Seller’s proprietary designs or processes; or (4) used by a party other than the Buyer or the Buyer’s customer for any purpose.
SEVERABLE AND INDEPENDENT PROVISION: WITHOUT LIMITING THE FOREGOING, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH, FURTHER, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED ITS ESSENTIAL PURPOSE, ALL OTHER LIMITATIONS OF LIABILITY AND EXCLUSION OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN FULL FORCE AND EFFECT. ALL SUCH PROVISIONS SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS OF THIS AGREEMENT MAY BE BROUGHT BY BUYER MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
SECURITY INTEREST: Seller 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 Seller immediately prior to purchase, Seller 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 Buyer’s failure to pay any amounts when due will give Seller the right to possession and removal of the equipment at any time upon giving at least 10 days prior written notice. Seller’s taking of such possession will be without prejudice to any other remedies Seller may have. The title to the equipment will pass to the Buyer upon shipment from Seller except that title to leased equipment which is installed and being purchased under any schedule enumerated in a lease will pass to the Buyer upon Seller’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 Seller, the Buyer will join with Seller in executing one or more financing statements or other documents reasonably required by Seller to protect the Seller’s security interest in a form satisfactory to Seller
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.
INTERNATIONAL PURCHASES: The Seller and Buyer specifically accept INCO TERMS 2000 and specifically reject the application of CISG (Contracts for the International Sale of Goods) for the purchase of goods or services between the parties.
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 Seller is located. CISG (the Convention for the International Sale of Goods) is expressly rejected.
U.S. EXPORT CONTROLS: All items furnished by Seller to Purchaser in connection herewith shall at all times be subject to the export control laws and regulations of the U.S. including, but not limited to, 10 CFR Part 810 and U.S. Export Administration Regulations. Purchaser agrees and give assurance that no items, equipment, materials, service, technical data, technology, software or other technical information or assistance furnished by Seller, or any good or product resulting therefrom, shall be exported or re-exported by Purchaser or its authorized transferees, if any, directly or indirectly, unless in accordance with applicable U.S. export laws and regulations. The aforesaid obligations shall survive any satisfaction, expiration, termination or discharge of any other contract obligations.