Large Machine: GENERAL TERMS & CONDITIONS

SUBJECT MATTER OF AGREEMENT

All items included under Customer’s purchase order as accepted by Seller, and any additions to them pursuant to this Agreement, are referred to as the “Equipment”.  The term “Agreement,” as used herein, shall mean, collectively, Seller’s quotation to Customer, these General Terms and Conditions and any other document(s) provided in connection therewith or herewith. 

ACCEPTANCE OF ORDER AND TERMS OF AGREEMENT

Customer’s purchase order is subject to final acceptance by Seller.  Seller’s quotation may be withdrawn or modified at any time prior to such acceptance.  No purchase order shall be binding upon Seller until Seller has so accepted.  The provisions of this Agreement shall control, notwithstanding any other terms and conditions in Customer’s purchase order or in any other document, and any additional terms or conditions contained in Customer’s purchase order which are not contained herein shall not be binding upon Seller unless otherwise agreed in writing.  It is an express condition of Seller’s acceptance that if any conflict arises between Customer’s purchase order and this Agreement, the latter shall apply and prevail in all events.

SALES PRICE

The price, unless otherwise specified, is F.O.B. at this point of shipment by Seller.  The price is subject to change if there is any change of specification or shipping date by Customer after Seller’s acceptance.

TAXES

No federal, state, provincial or local property, sales, use, excise, gross receipts, value-added or similar taxes, customs duties, assessments or similar charges by any government authority which may now or hereafter be imposed with respect to the Equipment, or any services performed in connection with it, are included in the quoted price except as specifically stated.  All such charges are the responsibility of Customer; and Seller reserves the right to bill Customer separately for any such charges Seller may be required to collect or pay.

TERMS AND TIME-PRICE DIFFERENTIAL

Terms of payment, unless otherwise quoted, are net 30 days from shipment.  A service charge of up to 1.5% per month is a part of this quotation and will be levied as a time-piece differential on all invoices unpaid when due.

CUSTOM MADE EQUIPMENT

If the Equipment is to be custom made, Customer acknowledges that reasonable variances may exist in projected and actual results yielded by the Equipment.  Customer waives any claim related to use of damaged, substandard, or contaminated material supplied by Customer for processing through the Equipment.

SHIPPING SCHEDULE

Unless specified in Seller’s quotation, no estimate has been made of the time required for shipment of the Equipment.  Any estimate is approximate only and will run from Seller’s written acceptance, or from when Seller receives complete information necessary to proceed with design and manufacture, whichever is later.  Shipping dates are subject to delays caused by civil insurrection, war, fire, strikes, labor stoppages, accidents, act of God, shortage of materials or parts, transportation embargoes, filling of orders accepted prior to Seller signing and accepting Customer’s purchase order, the establishment of any priority system by any government agency or authority, contract changes required by Customer, or any other factor or event beyond Seller’s control.  None of these events shall create any liability on Seller’s part and the shipping date shall be reasonably extended to compensate for any such delay.  Customer’s acceptance of the Equipment shall waive any claims for a delay in shipment. UNDER NO CIRCUMSTANCES SHALL SELLER HAVE ANY LIABILITY WHATSOEVER FOR LOSS OF USE OR FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM DELAYS IN SHIPPING OR IN DELIVERY.

TITLE AND RISK OF LOSS

All shipments shall be made F.O.B. at Seller’s point of shipment.  Customer shall pay shipping and related expenses, unless otherwise specified in Seller’s quotation.

INSTALLATION AND SERVICE

Seller may furnish qualified technical personnel to supervise the installation and initial start-up of the Equipment for the period and at the rates specified in Seller’s quotation.  Costs of installation shall be borne by Customer.  IF CUSTOMER INSTALLS THE EQUIPMENT WITHOUT PURCHASING INSTALLATION SUPERVISION BY SELLER, ANY DEFECTS IN THE EQUIPMENT CAUSED BY OR RELATED TO IMPROPER OR CARELESS INSTALLATION SHALL NOT BE COVERED BY ANY WARRANTY OF SELLER AND SHALL BE THE SOLE RESPONSIBILITY OF CUSTOMER.  Maintenance and service of the Equipment shall be the sole responsibility of Customer.

CUSTOMER DELAYS AND CANCELLATION

If Customer requests Seller to delay shipment, the entire purchase price shall become due and owing 30 days after Seller advises Customer that the Equipment is ready for shipment.  Thereafter, Seller may store or arrange for the storage of the Equipment at Customer’s sole risk and expense.  If Customer requests Seller to discontinue work on or to cancel all or any part of its order:

a)                    any Equipment completed at the date of such request may be shipped by Seller and invoiced to Customer at the contract price;

b)                    any and all Equipment schedules for completion within 30 days after the date of such request may be completed by Seller and invoiced to Customer together with a request for delivery instructions; and

c)                    work on the balance of the order will be stopped as promptly as reasonably possible and Seller reserves the right to invoice Customer for all actual expenditures, commitments, liabilities and costs made or incurred with respect to such incompleted Equipment, plus a charge equal to the lost profits on such Equipment, less any net recovery to Seller upon the disposition of such Equipment to third parties within a period of 30 days after the date of such request; such invoice to Customer to be payable within 30 days.  Customer shall also have the option of taking delivery of such incompleted Equipment upon the payment in full of all amounts due Seller as determined above, provided that Customer so notifies Seller at the time that Customer requests Seller to discontinue work on or to cancel all or any part of its order.

d)                    Seller may pursue any other legal remedies available to it although not specified herein.

CANCELLATION BY SELLER

Seller may require, at any time, that Customer post adequate security for any or all payments due if a good faith doubt arises as to Customer’s ability to make the required payments.  Seller may cancel and refuse to honor Customer’s purchase order if, at any time, Customer becomes bankrupt or insolvent, or if Customer fails or refuses to post any security required by Seller.

SECURITY AGREEMENT

Customer grants Seller a security interest in the Equipment until the entire purchase price is paid.  Upon Seller’s request, Customer will execute any other document(s) reasonably required by Seller to perfect its security interest.  Seller may file one or more financing statements, with or without Customer’s signature, in connection with this Agreement, or Seller may file a copy of this Agreement as a financing statement.  Customer constitutes and appoints Seller its true and lawful attorney who in Customer’s name, place and stead may execute, acknowledge and file any certificate in any jurisdiction.

PATENT INDEMNIFICATION

Seller shall defend any suit or proceeding brought against Customer and pay any costs or damages awarded against Customer based upon a claim that the Equipment infringes upon any United States patent existing at the time of Seller’s quotation.  Seller’s responsibility hereunder shall terminate unless it is notified promptly of any such claims, is given information and assistance by Customer and absolute control of the defense of such claim (including the right to settle or defend), and is allowed to make such changes in the Equipment as it deems appropriate to avoid such claim or infringement.  Seller’s liability with respect to patent infringement shall not, under any circumstances exceed the purchase price of the Equipment alleged to infringe, and if the Equipment shall be held to have infringed any patent, Seller may procure for Customer the right to continue the use of such infringing Equipment, replace such Equipment so it becomes non-infringing, or repurchase such Equipment from Customer at its purchase price.  Seller shall not be responsible for any infringement claim based, directly or indirectly, upon and the foregoing indemnity does not apply to the following:

a)                    patented processes performed by the Equipment, or another product thereby;

b)                    Equipment supplied according to a design other than that of Seller and which is required by Customer; or

c)                    combinations of the Equipment with other products not furnished hereunder unless Seller is a contributory infringer.

To the extent that any infringing Equipment is supplied by or according to the specifications and designs of Customer, Customer agrees to indemnify Seller in a like manner and to a like extent.  The foregoing states the entire liability of Seller to Customer arising from patent infringement.

INDEMNIFICATION AND EXPENSES

Customer hereby assumes liability for, and agrees to indemnify, protect, and save the Seller harmless from and against all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses, and disbursements, including legal expenses, of whatever kind and nature, incurred by or asserted against Seller in any way related to or arising out of the development, sale, possession, use, or improvement of the Equipment.  Such indemnity and saving harmless and the conditions to which they apply shall be exclusive of rights created under the “Patent Indemnification” section of this Agreement.  (Also see “Safe Operating Procedures”.)

DRAWINGS

Seller will furnish Customer floor plan layouts, electrical diagrams and service parts and maintenance booklets when the Equipment is shipped.  Descriptive or technical materials, specifications or drawings furnished to Customer are for informational purposes only and are not binding upon Seller unless certified by Seller in a formal written acknowledgement referring specifically to this quotation.

Information regarding Seller’s manufacturing techniques, standards, and know-how need not be disclosed by Seller to Customer.  Any quotations, proposals, permits, brochures, drawings, diagrams, specifications, technical materials, or other information furnished to Customer by Seller are intended for the confidential use of Customer only, shall remain the property of Seller and shall not be reproduced or disclosed to third parties.  All such information shall be returned to Seller on demand.

SAFE OPERATING PROCEDURES

Customer shall be responsible for the use of all safety devices, guards, and safe operating procedures pertaining to the Equipment. Neither Customer nor its employees or agents shall remove, modify or change any recommended safety procedures or any safety warning signs, devices, or guards associated with the Equipment.  Customer shall promptly install or utilize any safety device, guard, procedure or warning sign provided to Customer by Seller.  It is Customer’s non-delegable duty to provide other proper warning signs, devices, guards and other precautions as are necessary to effectively protect the safety and health of its employees in light of the particular use, set-up, or operation of the Equipment or as may be required by state, federal, or local law or regulations.  Customer shall indemnify and hold Seller harmless from any liability or obligation incurred by Seller to persons injured, directly or indirectly, as a result of or in connection with the operation or maintenance of the Equipment if any warning signs, devices, or guards are removed, or in any way changes, or if any recommended or required safety procedures are not completely followed.

WARRANTY AND LIMITATION OF LIABILITY

Seller warrants that all Equipment meets manufacturer’s production and quality assurance specifications before being released for distribution.  Seller further warrants that:

a)                    all Equipment shall be free from defects in material and workmanship for a period of one (1) year from date of shipment;

b)                    all ultrasonic generators shall be free from defects in materials and workmanship for an additional one (1) year period (for a total of  two (2) years) from the date of shipment; and

c)                    the bonding of transducers shall be free from defects in material and workmanship for a period of two (2) years from the date of shipment.

Seller will replace or repair, at its option, any equipment which, upon examination, is determined to be defective in workmanship and material within the applicable warranty period, provided that such Equipment is in the possession of the original purchaser and has been properly installed, maintained, lubricated and serviced within the limits of normal usage as specified by Seller, not altered or modified by Customer, and properly used under recommended operating conditions. SUCH REPAIR OR REPLACEMENT SHALL BE THE EXCLUSIVE REMEDY AVAILABLE IN CONNECTION WITH THIS WARRANTY.  Seller’s determination as to the defectiveness of any Equipment shall be final and Seller shall have no responsibility for reimbursing Customer for repair or replacement cost incurred without Seller’s prior written authorization.  In no event shall Seller have any liability to Customer or any third party, in contract or tort:                                                                               

a)                                in excess of the purchase price paid for the defective Equipment; or

b)                                FOR PAYMENT OF SPECIAL, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES SUCH AS BUT NOT LIMITED TO, DAMAGES RESULTING FROM PERSONAL INJURY, FROM PROPERTY DAMAGE  TO ANY OTHER GOODS, OR EQUIPMENT, FROM PRODUCTION STOPPAGES, “DOWNTIME”, LOSS OF PROFITS OR OTHER ECONOMIC LOSS, INDIRECT, SPECIAL, CONSEQUENTIAL, OTHER SIMILAR DAMAGES ARISING OUT OF ANY BREACH OF ANY AGREEMENT OR OF ITS OBLIGATIONS UNDER ANY AGREEMENT BETWEEN CUSTOMER AND SELLER AS CONCERNS THE EQUIPMENT.

c)                                for repair, replacement or damages resulting from any misuse, abuse or normal operation wear of the Equipment.

No warranty is given for (a) cavitation erosion of tank and transducer surfaces, which is a normal occurrence and develops over time in the operation of ultrasonic cleaning equipment, or (b) expendable items such as fuses, filters, bulbs, or similar parts having a useful life inherently shorter than twelve (12) months.

Component parts of the Equipment supplied, but not manufactured, by Seller are sold subject to the respective manufacturer’s conditions of sale, and Customer shall be entitled to such benefits as Seller may receive under any contract with such manufacturer or under any warranty given by such manufacturer, provided such benefits are transferable.  Seller shall have no liability to Customer in the event any such manufacturer fails to honor any such warranty or to meet any liability which may arise by reason of any defect in such component parts.

THIS WARRANTY CONSTITUTES SELLER’S SOLE AND ENTIRE WARRANTY OBLIGATION AND LIABILITY IN CONNECTION WITH THE EQUIPMENT, AND IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  Seller expressly denies the right of any other person to incur or assume for it any other liability in connection with the sale of the Equipment.

Any action for breach of this warranty or other action related to the sale of the Equipment must be commenced within one year after such cause of action arises.

If Customer fails to timely pay the full purchase price, Seller shall be relieved from any obligation or liability under this warranty while any payments due are in arrears.  In no event will Customer’s failure to make or delay in making any payment extend any warranty period.

All production or performance specifications supplied to Customer are strictly estimates based upon Seller’s analysis of the material or parts to be processed, interpretation of tolerance and accuracy requirements, assumptions of facilities available and operator skill.  NO SUCH PRODUCTION OR PERFORMANCE ESTIMATE SHALL CONSTITUTE A WARRANTY OR GUARANTEE OF PRODUCTION OR PERFORMANCE RESULTS.

Any warranty to Customer is voided by Customer’s use of liquids, soaps, additives or solvents other than those specified by Seller.

SEVERABILITY

This Agreement is severable.  Any term declared invalid, will not affect the remaining terms and conditions.

INTEGRATION

This Agreement constitutes the complete agreement between Seller and Customer.  It supersedes all prior oral or written statements of any kind between the parties or their representatives.  Seller will not be bound by any additional or different terms and conditions unless specifically acknowledged in writing by an authorized agent of Seller.  No verbal understanding or prior course of dealing shall modify this Agreement unless agreed to in writing by Seller.

GOVERNING LAW AND PLACE OF PERFORMANCE

This Agreement shall be governed by the laws of the State of New York.

CAPTIONS

The captions in this Agreement are for convenience of reference only and do not define or limit any of its terms.