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Terms and Conditions of Sale


 

These Terms and Conditions (“Terms and Conditions”) govern (a) all sales quotations and sales of components, equipment, parts, and other products (“Product”) from, and (b) all service proposals and provisions of services by Seller to the buyer of the Products (“Buyer”). These Terms and Conditions shall take precedence over any terms and conditions which appear on Buyer’s order or other form or any other writing or electronic transmission from Buyer. Any terms or conditions on any of Buyer’s forms, recordings, electronic transmissions, or orders that are different from or in addition to these Terms and Conditions are specifically rejected. Any modification to these Terms and Conditions must be agreed to and executed in writing by Seller. Seller’s failure to object to provisions contained in any communication from Buyer shall not be construed as a waiver of these Terms and Conditions or as an acceptance of any such provision. Trade custom, trade usage and past performance are superseded by these terms and conditions and shall not be used to interpret these terms and conditions. In the event that Product includes software, the software is licensed to Buyer in object code form only in accordance with Seller’s standard Software License Terms that are included below.

1. Quotations and Proposals.  Only a written quotation or proposal shall constitute Seller’s Quotation or Proposal hereunder, and it shall expire on the expiration date indicated on said Quotation or Proposal, or, if no date is specified, then thirty (30) days after the date of the Quotation or Proposal. Any Quotation or Proposal may be modified or withdrawn by Seller, in whole or in part, at any time prior to acceptance of an order by Seller.

2. Orders and Acceptance of Orders.  By submitting an order to Seller, Buyer agrees to be subject to these Terms and Conditions in their entirety. All orders must be submitted in writing (including, without limitation, by electronic mail) and reference the particular Seller Quotation or Proposal under which they are being submitted. No order shall be binding upon Seller unless and until such order is accepted (or otherwise processed) by Seller at its principal office in New Hampshire.

3. Prices.  Prices of Product and services shall be as specified on Seller’s then current list price, unless otherwise stated by Seller in writing. Any goods or services to be manufactured or provided by any third party which are assigned for purchase to Seller by Buyer in connection with an accepted order shall be assigned in writing at the current price in effect at the time of Seller’s acceptance of Buyer’s order. Should the price of any such goods or services increase prior to Seller’s shipment, Seller’s price to Buyer shall be increased by the difference between the original price and the price in effect at the time of shipment to Buyer.

4. Taxes. Unless otherwise specified in writing by Seller, prices do not include federal, state, or local sales, use, or other taxes or governmental charges of any nature whatsoever, now or hereafter enacted, or any other fees, bonds or other assessments. All such taxes, governmental charges, fees, bonds and assessments are paid by Buyer unless Buyer provides Seller with a proper exemption certificate. Buyer agrees to indemnify Seller and hold it harmless from any and all such taxes, governmental charges, fees, bonds and assessments, and any and all interest and penalties related thereto. Seller may, in its discretion, add such taxes, governmental charges, fees, bonds and assessments to the price or bill for such taxes, governmental charges, fees, bonds and assessments separately.

5. Shipments. All Product will be shipped F.O.B. shipping point unless specifically agreed to by Seller in writing. Shipments shall be subject to approval of Buyer’s credit by Seller. In the case where Buyer’s credit is or has become unacceptable to Seller, in its sole discretion, Seller may, at its option, terminate the order, refuse to make shipment or refuse to make further shipments, in each case unless and until payment is made by Buyer or satisfactory security for payment is received by Seller, prior to shipment. In the absence of specific instructions, Seller will select the carrier but shall not be deemed thereby to assume any liability in connection with the shipment, nor shall the carrier be construed to be the agent of Seller. Buyer must provide its own insurance. Title and risk of loss or damage shall pass from Seller to Buyer upon delivery by Seller to the possession of the carrier. Any claims for loss, damage, or misdelivery shall be filed with the carrier. Unless otherwise specified in writing by Seller, Buyer is responsible for all site preparation and for receiving, storing, installing, starting up and maintaining all Product. In its sole discretion, Seller may provide a quotation for services to assist Buyer in some or all of these functions if requested.

6. Delivery Dates.  The estimated shipping schedule stated or confirmed by Seller is based on Seller’s prompt receipt of all necessary information and/or goods from Buyer to properly process the order, and does not constitute a commitment to deliver Product in accordance therewith. Seller will use reasonable efforts to ship on or before the estimated shipping dates. Should these reasonable efforts entail additional costs as a result of actions or inactions of parties outside the control of Seller, including, without limitation, those of Buyer, Seller shall be entitled to additional compensation.

7. Terms and Methods of Payment.  All payments are to be made in U.S. Dollars. Unless otherwise specified in writing by Seller, all payments are due net 30 days from date of invoice. Past due amounts will bear interest at 1½% per month, 18% per annum (but in no event more than the maximum amount permitted by law). Without limiting any other remedies available to it at law or in equity, Seller shall have the right to terminate the order or to suspend further deliveries under any order and agreement with Buyer in the event that Buyer fails to make any payment to Seller when due. Seller may recover all costs of collecting past due amounts (including reasonable legal fees and expenses).

8. Security Interest.  Buyer hereby grants to Seller a lien and security interest in all Product as security for the performance by Buyer of all of its obligations for the purchase of Product (including payment). Buyer agrees to execute such documents to evidence and perfect said security interest as Seller may require. Buyer appoints Seller as its agent and attorney-in-fact for the purpose of executing all such documents on Buyer’s behalf, including, without limitation, financing statements, and for the purposes of taking any and all other action for the perfection and enforcement of such security interest. Seller has the right to file a copy of Buyer’s order and this document as a financing statement.

9. Contingencies.  Seller shall not be liable for any delay in delivery or performance, or for non-delivery or non-performance, in whole or in part, caused by the occurrence of any contingency beyond Seller’s control, including, without limitation, sabotage, insurrection, riot or other act of civil disobedience, act of a public enemy, terrorism, failure or delay in transportation, act of any government or any agency or subdivision thereof, judicial action, labor dispute, accident, fire, explosion, flood, storm or other act of God, shortage of labor, fuel, raw material, or machinery or technical failure, where Seller has exercised ordinary care in the prevention thereof. If any such contingency occurs, Seller may allocate production and deliveries among Seller’s customers in any manner deemed reasonable by Seller.

10. Substitutions and Modifications of Equipment.  Seller reserves the right to discontinue the manufacture of any Product, and may otherwise modify the design and specifications of Product, provided the modifications do not adversely affect the performance of the Product. Product may be newly manufactured or assembled by Seller from new parts. In addition, Seller may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by government authority or non-availability of materials from suppliers.

11. Conditions of Warranties.  To the extent that Seller has relied upon any specifications, information, representation of operating conditions or other data or information supplied by Buyer to Seller in the selection or design of Product and/or provision of services, and in the event that actual operating conditions or other conditions differ from those represented by Buyer and relied upon by Seller, any warranties or other provisions that are affected by such conditions shall terminate, unless otherwise mutually agreed upon in writing. Upon any nonpayment by Buyer when due, all warranties and other obligations of Seller with respect to Product delivered and/or services provided by Seller to Buyer shall terminate.

12. Termination.  No products may be returned without prior written approval of Seller. Orders accepted by Seller may be canceled by Buyer only with the written consent of Seller and upon Buyer’s reimbursement of Seller for all losses, damages, costs, lost profits and expenses arising from such cancellation. Seller shall have the right to cancel any order placed, or to refuse, or to delay, the shipment thereof for failure of Buyer to make all payments when due to Seller, or any other reasonable requirements established by Seller, or for any acts or omissions of Buyer that delay Seller’s performance. In the event of bankruptcy or insolvency of Buyer, or in the event any proceeding is brought by or against Buyer, voluntarily or involuntarily, under any provision of the U.S. Bankruptcy Code or any other insolvency law, Seller shall be entitled to cancel any order then outstanding, at any time during the period allowed for filing claims against the estate, and shall receive reimbursements for its reasonable and proper cancellation charges.

13. Non-Waiver of Default.  If Seller elects to continue to make shipments or perform under an accepted order, Seller’s action shall not constitute a waiver of any default by Buyer or in any way affect Seller’s legal remedies for any such default.

14. Applicable Law.  The validity, performance, and construction of these Terms and Conditions shall be governed by the laws of the State of New Hampshire. All controversies and disputes arising under these Terms and Conditions or pertaining to Product or services shall be resolved by the state or federal courts in New Hampshire. The parties consent to jurisdiction of said courts and to service of process in any manner approved by said courts.

15. Government Contracts.  If the Product is to be used in the performance of a government contract or subcontract, the government contract number and a statement to this effect shall appear on Buyer’s purchase order, and in such event, those clauses of the applicable government procurement regulation which are mandatorily required by federal statute to be included in government subcontracts shall be included in the order and, upon acceptance by Seller, shall be incorporated herein by reference.

16. Export.  If the Products ordered are to be exported from the United States, the quoted shipping dates are subject to receipt of all export documents and authorizations. Regardless of ultimate destination, the prices quoted are based on packing for domestic shipment unless otherwise stated in writing. Buyer agrees to provide Seller in writing with the ultimate destination and identity of the end-user prior to shipment if the products are to be exported. Unless otherwise specifically agreed to by Seller in writing, Buyer shall not export, or re-export, either directly or indirectly, any Product or any system incorporating said Product, without first obtaining a license from the United States Department of Commerce or any other agency or department of the United States government, as required.

17. Assignment.  These Terms and Conditions shall be binding upon and inure to the benefit of the parties and the successors and assigns of the entire business and goodwill of either Seller or Buyer, or of that part of the business of either used in the performance hereof, but shall not be otherwise assignable.

18. Notice.  All notices given hereunder shall be in writing and shall be sent or delivered by first class U.S. mail, national overnight courier, confirmed facsimile, electronic mail or by hand to the address or facsimile number of the other party set forth in the Quotation, Proposal or Acknowledgment, or to such other address as such party may designate from time to time by such notice. All notices shall be deemed effective:

  • (a) three days after depositing in the U.S. mail

  • (b) one day after depositing with a national overnight courier or

  • (c) immediately when sent or delivered by confirmed facsimile, electronic mail or by hand.

 

19. Remedies.  All Seller’s rights and remedies, whether evidenced hereby or by any other agreement, instrument, or paper, shall be cumulative and may be exercised singularly or concurrently.

20. Limited Warranty. 


A. Seller Manufactured Products and Seller Provided Services.

Seller warrants to Buyer that:

 

  • (i) Seller manufactured Software (as defined in Section 23 below) shall execute the programming instructions provided by Seller, and

  • (ii) Seller manufactured Product and consumables and Seller provided services shall be free from material defects in material and workmanship under normal uses and care, in each case until the expiration of the applicable warranty period specified below

Seller manufactured Product is warranted for the shorter of twelve (12) months from the date of initial installation or fifteen (15) months from the date of shipment by Seller.  Seller manufactured consumables and Software, and Seller provided services are warranted for a period of ninety (90) days from the date of shipment or completion, as applicable. If Buyer discovers any warranty defect and notifies Seller thereof in writing during the applicable warranty period, Seller shall, at its option, promptly correct any defects that are found by Seller, or repair or replace F.O.B. point of manufacture that portion of the Seller manufactured Products, consumables or Software found by Seller to be defective, or refund the price of the defective portion of the Seller manufactured Products, consumables or Software, or of the defective portion of the Seller provided services.  All replacements or repairs necessitated by inadequate maintenance, normal wear and usage, unsuitable power sources, unsuitable environmental conditions, accident, misuse, improper installation, modification, repair, storage or handling, or any other cause not the fault of Seller are not covered by this limited warranty, and shall be at Buyer’s expense. Seller shall not be obligated to pay any costs or charges incurred by Buyer or any other party except as may be agreed upon in writing in advance by an authorized representative of Seller. All costs of dismantling, re-installation and freight, and the time and expenses of Seller’s personnel for site travel and diagnosis under this limited warranty shall be borne by Buyer unless accepted in writing by Seller. Seller manufactured Products, consumables and Software, and Seller provided services, repaired, replaced or corrected during the applicable warranty period shall be in warranty for the greater of the remainder of the applicable original warranty period or ninety (90) days.

THE FOREGOING STATES THE SOLE AND EXCLUSIVE WARRANTY AND LIABILITY OF SELLER. FOR BREACH OF WARRANTY AND IS IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS, EXPRESSED OR IMPLIED, IN REGARD THERETO. EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN THIS SECTION, SELLER DOES NOT MAKE AND HEREBY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND WHATSOEVER, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR ACCURACY, ADEQUACY OR COMPLETENESS OF DATA MEASUREMENT, WITH RESPECT TO ANY OF THE SELLER MANUFACTURED PRODUCTS, CONSUMABLES OR SOFTWARE, OR ANY OF THE SELLER PROVIDED SERVICES.

Any drawings submitted with the Products are only to show the general style, arrangement, and approximate dimensions of the Products.

B. Equipment, Consumables, Software and Services Manufactured or Provided by Others.

SELLER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND WHATSOEVER, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY PARTICULAR PURPOSE, NONINFRINGEMENT OR ACCURACY, ADEQUACY OR COMPLETENESS OF DATA MEASUREMENT, WITH RESPECT TO ANY EQUIPMENT, COMPONENTS, PARTS, CONSUMABLES, SOFTWARE OR SERVICES SOLD TO BUYER BY SELLER. THAT ARE NOT MANUFACTURED OR PROVIDED BY SELLER. Seller shall assign the manufacturer’s or service provider’s warranty applicable to such equipment, components, parts, consumables, Software and services to the extent permitted, to Buyer. Seller will provide Buyer with available warranty information.

21. Limitations.  IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL SELLER’S LIABILITY EXCEED THE PRICE ACTUALLY PAID BY BUYER TO SELLER FOR THE SPECIFIC PRODUCTS, CONSUMABLES AND/OR SOFTWARE MANUFACTURED, AND/OR SERVICES PROVIDED, BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION.  SELLER SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR ANY LOSS OF REVENUE, LOSS OF PROFITS OR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF ANY TRANSACTION GOVERNED BY THESE TERMS AND CONDITIONS, MAY BE BROUGHT BY EITHER PARTY MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION HAS ACCRUED. The foregoing allocation of risk and limitation of liability has been agreed to by the parties and forms the basis of their willingness to enter into any accepted order.

22. Software License. 
    (A) For purposes hereof, “Software” means the computer programs included in the Product at delivery, together with all codes, techniques, software tools, formats, designs, concepts, methods, and ideas associated with those computer programs. The term also includes all copies of any part of the software, as well as the manual(s) and printed materials provided by Seller.

    (B) Seller grants Buyer a non-exclusive, non-transferable license to use the Software, in object code form only, according to the terms set forth below. Buyer may operate the Software only (i) in conjunction with and as part of the Product; (ii) in the manner in which it is intended by Seller; and (iii) at Buyer’s plant site where the Product is first used. Buyer may negotiate with Seller separate licenses to use the Software at other plant sites. Buyer’s use of Software shall be governed exclusively by Seller’s and/or an third party owner’s applicable license terms.

    (C) Buyer shall not (i) make the Software available to any person or entity other than its employees, who must use the Software only as specified above; (ii) modify the Software or merge it with another program; (iii) reverse engineer, disassemble, decompile, or make any attempt to discover the source code of the Software; (iv) translate or create derivative works based on the Software; (v) remove, obscure, or alter any notice of the patent, copyright, or other proprietary rights related to the Software; (vi) sub-license, sell, lend, rent, or lease any portion of the Software; (vii) copy any portion of the Software; (viii) operate the Software other than in conjunction with operation of Product; or (ix) transfer the Software in violation of applicable United States Export laws and regulations.

    (D) The Software involves valuable proprietary rights to Seller and others. There is no transfer to Buyer of any title to or any ownership of the Software or any patent, copyright, trade secret, trade name, trademark, and other proprietary rights related to the Software, regardless of the form in which they exist. Seller may at any time replace, modify, alter, improve, enhance, or change the Software.

    (E) Both the license and Buyer’s right to use the Software terminate automatically if Buyer violates any of these Terms and Conditions. In the event of termination, Buyer must immediately return, or destroy, all copies of the Software.

 

Last updated September 2014.
© 2014 Madgetech, Inc. All rights reserved.