1. Seller shall not be held responsible for any late delivery or failure to make delivery of all or any part of the goods purchased under this order due to federal, state or municipal action, statutes, ordinances or regulations: strike, lockout or other labor trouble; fire damage to or destruction in whole or in part of merchandising or manufacturing plant: lack of or inability to obtain raw materials; labor, fuel or supplies, war, revolution, riot or other civil disorder; acts of enemies; floods; acts of God; accident; or any other cause, contingency or circumstance within or without the United States not subject to or its control which prevents or hinders the manufacture or delivery of the merchandise; any of which shall release Seller from the performance of this order.
2. Seller intends to comply with all federal, state and local laws or regulations applicable to the performance by Seller of this order; provided, however, that any failure of Seller to so comply shall not be a defense to, or excuse Buyer from, performance of this order.
3. Diversion of Conax Technologies, LLC product which is contrary to United States law is prohibited.
4. Seller warrants to Buyer that any goods supplied hereunder which were manufactured by Seller shall be free from defects in material and workmanship under normal use and service. Seller’s obligation under this warranty shall be limited to the following: Provided that, within one year after delivery of the product to Buyer, the product is returned to Seller with transportation charges prepaid and Seller’s examination thereof reveals the product to be defective, as aforesaid, Seller, at its option, shall either refund to Buyer the parts of the product which the aforesaid examination of the Seller has disclosed to been defective. This warranty shall not apply to any product which has been maintained, handled, stored, repaired or altered in any manner so as, in Seller’s judgment, to affect adversely such product or which has been subject to misuse, negligence, accident or corrosion. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ANY WARRANTY OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, WHETHER EXPRESSED OR IMPLIED, AND ALL OTHER LIABILITIES AND OBLIGATIONS ON THE PART OF THE SELLER; SELLER SHALL NOT BE LIABLE FOR ANY OTHER CLAIMS OR DAMAGES, EITHER DIRECT OR CONSEQUENTIAL, ARISING DIRECTLY OR INDIRECTLY OUT OF SUPPLYING THE PRODUCT.
5. If any model or sample was shown to the Buyer such model or sample was used merely to illustrate the general type and quality of the goods and not to represent that the goods would necessarily be of that type or quality and such model or sample was not intended to create a warranty of any type, either expressed or implied.
6. Buyer hereby waives any right to reject, revoke acceptance or assert any claim under Seller’s limited warranty for any claim for defects or non-conformity in any product which would be observable on reasonable inspection at the time of delivery, unless written notice thereof is received by Seller within thirty days after delivery of the product to Buyer, which Buyer and Seller agree is a reasonable time for such purpose. Acceptance of the product on delivery shall constitute a waiver of any right to reject, revoke acceptance or assert any claim for damages on account of delay in delivery.
7. Any drawing, calculation or data which may be furnished or otherwise disclosed by Seller to Buyer, at any time during negotiations or as part of this order is furnished or otherwise disclosed with the express understanding that such drawing, calculation or data shall not be divulged or disclosed in any manner whatsoever to any other person, and such drawing, calculation or data shall be used by Buyer only in connection with the purchase and use of the product.
8. Seller makes no warranty that the goods sold under this order are delivered free of the rightful claim of any third party by way of infringement of the like.
9. Any excises, levies, assessments or taxes of whatever kind which Seller may be required to pay or collect under any existing or future law, rule or regulation upon or with respect to the sale, purchase, delivery, storage, processing, use, consumption or transportation of the product shall be for the account of Buyer and Buyer shall promptly pay the amount thereof to Seller upon request.
10. All prices referred to in this Agreement are FCA Seller’s warehouse in Buffalo, NY. Seller, in its sole discretion, shall select the means of transportation and carriers for which Buyer shall be fully responsible including, without limitation, for all costs thereof. Risk of loss shall pass to, and remain with, Buyer at the time the product leaves Seller’s plant or is delivered to a carrier, whichever occurs first. The sequence of delivery shall be at Seller’s convenience and sole discretion and delivery may be made in lots unless a particular sequence of delivery is specified in this order.
11. Seller shall submit invoices to Buyer for the product shipment provided, however, that in case shipments are held up at Seller’s plant on request of Buyer, invoices shall be rendered for the completed products as though actually shipped, and Seller shall receive reasonable compensation of all extra expenses incurred, including, without limitation, storage expenses. Unless otherwise provided in this order, invoices shall be payable 30 days after the date thereof. All payments shall be made by Buyer as and when the same become due and payable and Buyer shall not withhold or delay payment of any part thereof for any reason whatsoever. Payments not made when due shall bear interest at the maximum legal rate permitted by law.
12. There shall be no cancellation by Buyer after the date of execution of this order by Buyer, unless agreed to in writing by Seller, in which case Seller may assess such cancellation charge as may reasonably be determined by Seller. Seller may, at its discretion, accept return of an unused product within sixty (60) days after the date of delivery to Buyer (“return period”) if the product is returned in original condition, with transportation charges pre-paid by Buyer. Returned goods will be subject to a fifteen percent (15%) charge if received within fifteen (15) days after the date of delivery to Buyer and thirty-five percent (35%) if returned thereafter during the return period. “Seller will not accept the return of temperature sensor product. Seller will issue a credit to the customer who has returned the product within the stated period. No cash refunds will be made.”
13. Any knowledge or information which the Buyer shall have disclosed or may hereafter disclose to the Seller, and which in any way relates to the goods covered by this sale order, shall not, unless otherwise specifically agreed to in writing by the Seller be deemed to be confidential of proprietary information and shall be acquired by Seller free from any restrictions (other than a claim for patent infringement), as part of the consideration for this order.
14. The laws of the State of New York shall govern the right and duties of the parties to this Contract.
15. This order represents the entire understanding between the parties, and it supersedes all prior negotiation between the parties. This order cannot be amended or supplemented orally, but only by an agreement in writing signed by the party against whom enforcement of any such amendment of supplement is sought.
REV. D, 19-February-2020