DEFINITIONS. The Seller is EBL Products Inc., a Connecticut corporation. The Purchaser means the firm, company or person to whom any quotation or acknowledgement of order is addressed or with whom any contract is made. The term “goods” shall include without limitation any equipment sold or provided to the Purchaser or any services related to the use, design, manufacture, repair, maintenance or service of goods or services under this contract “Services” shall mean testing services provided by the Seller as well as repair, maintenance or other like services associated with the order. The “order” shall mean the contract between the Seller and Purchaser set out on the face of this acknowledgement of order of the quotation and in these terms and conditions.
THE CONTRACT. (i) All quotations given and all contracts made by the Seller are subject to the terms and conditions contained herein and all terms and conditions referred to by the Purchaser contained in any purchase order or other document otherwise brought to the attention of the Seller are hereby considered material, are objected to and are hereby excluded. These terms and conditions may be varied only by agreement in writing between the parties. Accordingly, these terms and conditions constitute the whole agreement between the parties and supersede any prior promises, representations, undertakings or implications. (ii) Quotations issued by the Seller are not offers capable of acceptance so as to make a binding contract. All orders placed with the Seller require its written acceptance before any contract arises. (iii) No servant or agent of the Seller has any authority to make any representations or to give any warranty relating to the goods and/or services or agree to any variation of or addition to these terms and conditions unless such is expressed in writing and signed on behalf of the seller by a Vice President or other person authorized by the Seller.
VALIDITY. Unless previously withdrawn, the quotation is valid only for the period stated or when no period is stated within 30 days only after its date. It is also subject to prior sale of goods and/or services or availability or capacity except where otherwise stated.
CHANGES TO THE ORDER: MODIFICATION AND IMPROVEMENTS. The Seller shall not be bound by any modification to this order requested by Purchaser unless set forth in a change order or other written agreement, signed by both the Seller and the Purchaser. Terms of any order may not be altered without the prior written approval signed by the Seller. the Seller may, however, carry out without notice to the Purchaser modifications or improvements in design, materials, or other methods of carrying out the work from time to time.
PRICE. The price shall be that set forth on the face of the Seller’s quotation or the Seller’s acknowledgement of order, whichever occurs last. Unless the parties expressly agree that the price is fixed, the Seller may give written notice to the Purchaser at any time before delivery of a price adjustment to reflect any increase in the cost of labor, raw materials, or any other costs of producing the goods or services.
PAYMENT. Unless the parties agree to the otherwise, payment shall be due and tendered in full thirty (30) days from the date of each invoice without discount. If payment is not made when due the Purchaser shall pay interest on any sums remaining unpaid at the rate of one and one-half percent (1 ½%) per month until the date of actual payment, provided however that if this rate exceeds the rate permitted by state law, the interest rate will be at the highest rate permitted by state law. In the case of payment other than by cash, payment shall be deemed not made until the instrument has cleared and the funds are in the Seller’s bank. Time of payment shall be of the essence and failure to make any payment on the due date shall entitle the Seller to treat this contract as repudiated.
DELIVERY; PACKING & SHIPPING. Seller, at its option, may deliver part quantities of the goods and invoice for partial shipments. Each installment or part delivery shall be considered a separate transaction. Seller shall prepare all goods for safe transportation and in conformance with common carrier classification requirements. Seller shall make no charge for packing, etc, unless otherwise agreed to in writing.
LIEN. Until all outstanding invoices for goods and/or services rendered to the Purchaser by the Seller are paid in full, Seller shall have a general lien, in addition to any other right to remedy available to Seller, upon the assets of the Purchaser or upon any goods of the Purchaser from time to time in the Seller’s possession or control, and the Seller may enforce such lien by selling the goods or a part thereof to realize the amounts then due to the Seller under this contract and may then appropriate the same.
SELLER’S PERFORMANCE. All dates or periods stated in relations to the commencement or completion of the work are estimates only, and the Seller shall not be liable to the Purchaser for any loss or damage of any kind (including direct, indirect or consequential loss) sustained by the Purchaser or any third party as a result of Seller’s failure to comply with such date or period of commencement or completion.
STORAGE. The Seller shall be entitled to store the goods either at its own premises or elsewhere at the Buyer’s expense in the following circumstances: (i) if the Purchaser is unable to conduct an inspection within seen days of notification, at which point the Purchaser is deemed to have waived its right to inspection; and (ii) if the Purchaser fails to take delivery on the due date or to accept delivery when tendered.
DAMAGE, SHORTFALL, LOSS. Seller shall not accept any responsibility for damages, shortfall, or loss in transit, unless (i) Seller and the carrier are both notified within three days of delivery; or (ii) Seller is notified within seven days after notification of shipment that no delivery has occurred. No responsibility can be accepted by Seller where Purchaser has been given a clean receipt.
REJECTIONS: If any goods and/or services furnished are found at any time to be defective in material, workmanship or otherwise not in conformity with the requirements of this order, seller may at its sole discretion replace the goods and/or services or refund the purchase price allocated to such goods and/or services.
SPECIFICATIONS. All information relating to performance, description, etc., is regarded as a general guide only and does not constitute a guarantee from the Seller unless separately set forth in writing at the time of placing the contract.
PURCHASER’S BREACH. Notwithstanding any provisions of this contract, the purchaser will be in breach of this contract if the Purchaser fails to tender payment on the due date of it the Purchaser ceases to conduct its operations in the normal course of business (including the inability to meet its obligations as they mature) or if any proceeding under the bankruptcy or insolvency laws is brought by or against Purchaser or a receiver for Seller is appointed or applied for or an assignment for the benefit of creditors is made by Purchaser, in the event of any of the above, Seller may terminate this order or a part of this order without liability. The Purchaser remains liable for deliveries previously made or for goods and/or services covered by this order then completed and subsequently delivered in accordance with the terms of this order.
SELLER’S REMEDIES. Upon failure of the Purchaser to conform to the terms of this contract, Seller shall have all the remedies available at law as well as any one or more of the following remedies: (i) rescission of the order in whole or part and refusal to make any further deliveries or installments, without any liability of the Purchaser; (ii) cancellation or rescission of any other orders with Purchaser or guarantee of adequate assurance, including payment in full prior to the Seller commencing or continuing work under those other orders, (iii) any and all costs of collection including reasonable attorney’s fees.
LIABILITY OF SELLER. In no event shall the Seller be liable to Purchaser or to any third party for any direct, indirect or consequential loss or damages of any kind whatsoever related in any way to this order, including without limitation, relating to the manufacturer, distribution, sale or use of the goods or to services provided. The Purchaser agrees that its remedy, if any, in the event of Seller’s default or other actions is limited to the invoiced prices of the goods and/or services to be supplied. The Seller assumes no liability for any claims brought by the Purchaser or a third party for any infringement of patent, trademark, copyright or similar laws of the United States or any foreign government.
WARRANTY. Seller warrants its equipment to be free from defects in material or workmanship under normal use and service for the warranty term designated by the Seller. Seller warrants services provided to be performed in accordance with generally accepted professional standards currently recognized in its field of expertise. The warranty term for equipment and services varies according to product line or services performed and will be provided upon request. For special engineering products (prototypes or custom designed goods) the warranty period will be separately negotiated. No warranty of any kind is provided for software associated with the goods and/or services. In no event, however, will a given warranty period exceed one year from shipment of the goods or the date of services, unless otherwise specified in writing signed by a duly authorized Vice President of the Seller. Purchaser will be responsible for returning the goods to the place of manufacture at the Purchaser’s cost, unless otherwise instructed by Seller. Returned goods are to be packaged in “as shipped” condition. i.e. original packaging method and materials. Purchaser must notify Seller in writing within seven business days of discover of a defect to be claimed under warranty. This warranty does not included expendable items. The Seller disclaims all other warranties whether written or oral. THE SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR PURPOSE. The Seller shall not be liable for any failure to discover defects in materials being tested with the goods or for any consequential damages arising from the purchase or use of the goods or performance of services. Purchaser’s exclusive remedy for breach of warranty or any other claim shall be return of the purchase price or replacement of the goods or services, at Seller’s sole discretion, in no event will Seller be liable to Purchaser or to any other third party for any damages, including any incidental or consequential damages, expenses, lost profits, lost savings or other damages arising out of the use of the inability to use the goods or arising out of the services provided. This warranty will be voided by (i) installation or servicing by persons not authorized by Seller; or (ii) improper installation, use, modification, alternation, storage, maintenance, handling, or other operations; or (iii) subjection to accident or abuse.
INDEMNITY AND WAIVER. Purchaser agrees to waive and shall require any end user to waive any and all rights and remedies against the Seller and its affiliates. Purchaser further indemnifies Seller from all loss whenever and wherever occurring associated with Purchaser’s use of the goods and/or services.
CANCELLATION. This order may be cancelled by Purchaser only upon written notice to Seller and upon payment of reasonable charges based on expenses already incurred and commitment made by Seller and upon compensation for any losses (including loss of profit), damage or other cost Seller may suffer as a result of such cancellation.
PRODUCTS, METHODS & MANUFACTURING PROCESSES; PROPRIETARY INFORMATION. Any information disclosed by Seller or its agents to Purchaser incidental to this order, including without limitation, information concerning Seller’s or its affiliate’s products, services or manufacturing processes, shall be considered confidential and proprietary and disclosed in confidence and no rights to such information are granted to the Purchaser, in the absence of any agreement to the contrary. The Seller retains the right to publish, use and permit others to use under license or otherwise any information or data developed in the course of the parties performing this contract.
PATENT AND COPYRIGHTS. The Purchaser shall indemnify Seller against any damages, costs or liabilities resulting from an infringement or alleged infringement of any intellectual or industrial property rights, including patents, trademarks, copyright, etc. arising from the carrying out of work in accordance with Purchaser’s instructions express or implied. The Purchaser further acknowledges that Seller or one of its affiliates is the owner of trademarks, patents and other industrial or intellectual property use in relationship to the goods and /or services and the associated goodwill. Purchaser will do nothing to diminish or jeopardize that goodwill or reputation associated with the goods and/or services. Seller will defend any suit brought against Purchaser based on any claim that Seller’s goods and/or services constitute an infringement of any existing United States patent, provided that Seller is notified promptly in writing and receives the cooperation of Purchaser; provided further, however, that if the equipment either in whole or parts is manufactured to Purchaser’s special order and is outside Seller’s stand product line, Purchaser agrees to protect and indemnify Seller against all claims for damage or profits arising from infringement of any United States patent. Any and all inventions arising in connection with this contract shall be the sole property of Seller.
LIMITED LICENSE FOR USE OF SOFTWARE. To the extent that the goods and/or services include software, Seller grants to purchaser a limited license for use of that software associated with the goods and/or services. The Purchaser is prohibited from copying, disclosing, or modifying the software in any way. The license terminates upon Purchaser’s breach of this contract. Seller has no liability to Purchaser for any defects in the software or for its failure to meet Purchaser’s needs.
TAXES. Prices do not include state or local taxes based on or measured by sales, which tax or taxes will be added to the prices where applicable.
IMPORT/EXPORT REGULATIONS. At its own expense, the Purchaser will comply with all government import and export regulations and will obtain at its own expense any license required to export or import the goods and/or services into the country of destination, a copy of which license will be sent upon request to the Seller. The Seller shall not be liable for any expense or loss caused by failure or delay in obtaining or renewing such license. Any damages incurred by the Seller by reason of such failure or delay shall be reimbursed by the Purchaser upon demand.
COMPLIANCE WITH LAWS. Purchaser shall comply with all applicable State, Federal and local laws, rules and regulations.
GOVERNING LAW. This order shall be governed in all respects by the law of the State in which the goods are manufacture or, in the case of services performed, in the State where Seller has its principal office.
SEVERABILITY. In the event that any part or provision of this order shall be declared to be illegal or unenforceable, it shall not affect the validity of the remaining provisions and all other provisions shall continue in full force and effect.
WAIVER. Failure by the Seller to insist upon strict performance of the terms and conditions of this order shall not be deemed a waiver of any subsequent fault hereunder.
FORCE MAJEURE. The Seller shall not be liable for any loss or damage whatsoever caused by delay in the performance of the non-performance of any of its obligations, under this order where the delay is due to any cause beyond its control in such event, the Seller may terminate or suspend this order with no liability for loss or damage whatsoever. The following, without prejudice to the generality of the above, are considered causes beyond the Seller’s control: Act of God, war or threat of war, sabotage, insurrection, civil disturbance, requisition, acts of local, state or federal government, import or export regulations, strikes, lock-outs, trade disputes (whether involving employees of the Seller or another), difficulties in obtaining labor, fuel, materials, machinery, information, data or know-how, breakdown in machinery, fire or accident, inadequate or defective instruction from Purchaser, defaults of the Purchaser or any third party.
ASSIGNMENT. Assignment of this order shall not be permitted without the prior written consent of the Seller.
NOTICE. All notices hereunder shall be written and shall be sent by first class mail to the principal office of the addressee and shall be deemed to have been received six working days after posting.
HEADINGS. The headings used in these conditions are for the purpose of convenience and identification only and are not to be taken as limiting the scope of possible construction of any clause.