Terms And Conditions Of Sale
General
The following terms and conditions are applicable to all sales by Steril-Aire USA, Inc. (“Seller”) in addition to the terms and conditions contained in any written quotation or invoice from Seller. The term “products” as used herein means the merchandise specified to be delivered and services to be performed by Seller. Any notice or communication required or permitted hereunder shall be deemed sufficiently given if sent in writing by registered or certified mail, postage prepaid to the other party hereto at its respective address shown on the face of the quotation or invoice. Any such notice, if mailed, shall be deemed to have been received on the third business day following such mailing. Either party hereto may notify the other party of a change of its address. This Agreement may not be assigned or otherwise transferred by Buyer without the prior written consent of Seller. Any such unconsented assignment shall be null and void and of no force or affect whatsoever.
2. Acceptance
All orders are subject to approval and acceptance by Seller, and Seller reserves the right, in its sole discretion, to accept or reject, in whole or in part, any or all orders. Any of the terms and conditions of Buyer’s order which are inconsistent with or in addition to the terms and conditions hereof shall not be considered applicable to the sale or shipment of the products. No contract shall exist except pursuant to Seller’s express written acceptance. In the absence of prompt written notification to the contrary, the sale and shipment by the Seller of products shall be conclusively and solely deemed to be subject to the terms and conditions hereof. Acknowledgment by Seller of receipt of an order shall not constitute, in-and-of itself, formal acceptance of the order nor of acceptance of any terms accompanying such an order.
3. Price
Unless otherwise separately and expressly set forth herein:
A. Prices do not include transportation charges, shipping, drawing, export or special packaging charges, markings or any compliance testing such as special environmental, vibration, life cycle, extreme temperature, etc.
B. Prices do not include any charges relating to inspection performed by outside individuals, entities, or agents at the request of Buyer.
C. Prices shall be subject to an additional charge to cover any existing or future sales, use, excise, property and other federal, state or local taxes, and duties, tariffs and other assessments (other than any tax based solely upon Seller’s net income) and related interest which Seller is at any time obligated to pay or collect in connection with or arising out of transactions between Seller and Buyer. If Buyer claims a tax exemption, Buyer must provide Seller with a valid tax exemption certificate prior to shipment of any product.
4. Terms
A. Terms are Net Cash prior to shipment except where satisfactory open account credit is established, in which case terms are Net Thirty (30) days from date of invoice. Seller reserves the right, in Seller’s sole discretion, to revoke any credit extended. Invoices will be issued upon shipment. Buyer agrees to pay the lesser of one and one-half percent (1½%) per month or the maximum rate legally permitted assessed against the unpaid balance from date of invoice (including any prior accumulated late charges) until date of payment. Buyer shall not have the right to withhold, delay, or set off any payments for any reason whatsoever.
B. Buyer hereby grants to Seller a purchase money security interest in the products sold to Buyer, and all proceeds thereof, as security for Buyer’s obligations. Buyer shall execute and cause to be filed all instruments or documents necessary to perfect any such security interest, including a financing statement on Form UCC-1.
5. Warranties
Seller warrants that all products ordered hereunder shall be free from defects in material and workmanship and will conform to specifications, drawings, samples or other description delivered by Buyer to Seller at Seller’s home office. Seller warrants that neither the use alone, nor the sale in the form in which the products were delivered to Buyer will infringe the claims of any U.S. patent. The express warranties made in this Agreement are in lieu of all other warranties and indemnification’s, express or implied, including without limitation, warranties of fitness, merchantability, or non-infringement. Buyer shall at its own expense defend and hold Seller harmless from any claim of any nature whatsoever arising out of any warranty or representation extended to others except to the extent specifically authorized hereunder.
6. Seller’s Liability
Seller’s liability is limited to either repair, replacement or refund of the purchase price of the products at Seller’s request, transportation charges prepaid by Buyer. Products shall not be returned to Seller without Seller’s permission. Seller shall not be liable for any of Buyer’s loss of profits, loss of business, loss of use, interruption of business, nor for indirect, special, incidental, consequential, punitive or exemplary damages of any kind whether under this Agreement or otherwise, even if Seller has been advised of the possibility of such a loss and regardless of the form of action or theory of liability (including, without limitation, actions in contract, warranty, negligence, or strict products liability). No claims for defective products (whether due to latent or patent defects) may be made except in writing, provided claims for patent defects are received by Seller within fifteen (15) days from the date of delivery and claims for latent defects are received by Seller within one year from the date of delivery. In the event that any other default is claimed, notice shall be promptly given to Seller.
7. Excuse
Seller shall not be in default by reason of any failure in performance of its obligations under any written agreement (including any failure to make progress in the prosecution of work thereunder which endangers performance) if such failures arise out of causes beyond the control (whether caused directly or indirectly) of Seller. Such causes may include, but are not restricted to: Acts of God or of the public enemy; acts of any Government (including specifically but not exclusively any orders, rules, or regulations issued by any official or agency of any such Government) in either its sovereign or contractual capacity; riots; fires; floods; epidemics; quarantine restrictions; embargoes; strikes; labor difficulties; unusually severe weather; shortages in labor, fuel, materials and supplies; or any combination thereof.
8. Force MAJEURE
Irrespective of anything herein to the contrary, in the event of war, fire, flood, strike, labor trouble, breakage of equipment, accident, riot, act of governmental authority, Acts of God, or contingencies beyond the reasonable control of the parties, any and all of which interfere with the production, supply, transportation, or consumption practice of the party at the time respecting the supplies covered by this contract, or in the event of inability to obtain on terms deemed by Seller to be practical any raw material (including energy source), purchased part or component used in connection therewith, quantities so affected shall be eliminated from any written agreement without liability, but the written agreement shall otherwise remain unaffected. Seller may, during any period of shortage due otherwise remain unaffected. Seller may, during any period of shortage due to any of said causes, allocate its supply of such raw material among its various uses thereof (e.g. manufacturing and sales) in such manner as Seller deems practicable and allocate its supply of such products among such various uses therefore in any manner which, in the opinion of Seller, is fair and reasonable.
9. Shipments
All shipments shall be F.O.B. Seller’s shipping point unless otherwise specified. In the absence of specific instructions, Seller may select the carrier. Risk of loss shall pass to Buyer upon delivery of the products to the carrier or delivery service or on the date in which payment is due, whichever occurs first. Products held for Buyer or stored for Buyer shall be at Buyer’s risk and expense. Payment for any shipment of products postponed at Buyer’s request and approved by Seller shall be due from the date previously specified in the order for shipment or from the date notice is given that the products are ready for shipment, whichever is later. In the event of such postponement, title shall pass to Buyer as of the date the products are ready for shipment. Claims against Seller for shortage must be made in writing within fourteen (14) days after receipt by Buyer of the products shipped.
10. Delivery
Each delivery shall be deemed to be a separate sale and Buyer shall make payment on partial deliveries. Unless otherwise agreed to in writing, Seller shall have the right to specify time of delivery whenever Buyer fails to express a specific delivery date.
11. Ownership
Unless otherwise, expressly and separately provided, Seller shall retain title to and possession of any models, patterns, dies, mold, jigs, fixtures and tools made for or obtained for the furnishing of an order. Title to all property rights including but not limited to copyrights, patents and trade secrets in Seller’s products, any materials or technology licensed to Buyer under this agreement, and any materials or technology derived from any of the foregoing, shall remain the exclusive property of Seller. Not withstanding anything to the contrary contained in any request for quotation, purchase order, written agreement or other document, or any purchase order or contract which may result therefrom, or in any plans, specifications, drawings, schedules or tables, contained in or incorporated therein by reference or otherwise, under no circumstances will:
A. Buyer have access to any portion of Seller’s facilities deemed to be proprietary by Seller;
B. Buyer have any right or rights in, to or access to any Proprietary data or information;
C. Seller be deemed to grant a license to or any right in any patent, applications for patent or Seller Proprietary data or information.
Seller shall not be bound by any provision under any prime or other contract under which Buyer may utilize products sold by Seller. “Proprietary data or information” as used herein means any data or information concerning Seller’s trade secrets such as may be contained in, but not limited to any formula or device or compilation of information concerning Seller’s manufacturing methods or processes, equipment and composition of materials, plant layout and tooling.
12. Waiver
All rights of the Seller hereunder are separate and cumulative, and no one of them, whether or not exercised shall be deemed to be an exclusion of any other rights and shall not limit or prejudice any other legal or equitable right which Seller may have. No waiver by Seller of any of its terms, conditions, rights or privileges shall be deemed as thereafter waiving any such terms, conditions or privileges.
13. Referenced Specifications
Seller shall not be required to perform nor comply with any specifications (including any specifications which may be implied or incorporated by reference) unless delivered to Seller at Seller’s home office and separately and specifically assented to in writing by Seller.
14. Controlling Provisions
The terms and conditions contained in any quotation or invoice by Seller shall supersede any provision, term or condition contained in any confirmation or purchase order or other writing Buyer may give or receive. Seller makes no representations and warranties concerning any written quotation except those expressly contained herein. A written quotation may not be changed or modified orally. Any change or modification must be in writing and signed by an officer of Seller.
15. Termination and Suspension
Any termination or suspension of a sales order shall be by written notice to Seller specifying the extent to which performance of the work is terminated or suspended. Seller shall stop work under a sales order and Buyer shall pay Seller for (1) full settlement for products completed and/or (2) termination or suspension charges billed on the percentage of completion basis as applied to total price but not to exceed the total order price.
16.
Ambiguities, inconsistencies, or conflicts in this agreement shall not be strictly construed against the drafter of the language but will be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the parties’ intentions at the time this agreement is entered into. The headings of the various sections and subsections of this agreement have been inserted for convenience only and shall not affect in any way the meaning or interpretation of this agreement. The validity, construction, and performance of this agreement shall be governed by the laws of the State of California without regard to principles of conflicts of law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions shall remain in full force and effect to the extent that the intent of the parties can be fulfilled.