Standard terms and conditions of sale
Current as of March 27, 2019
SELLER’S ACCEPTANCE OF BUYER’S PURCHASE ORDER IS EXPRESSLY MADE CONDITIONAL ON BUYER’S EXECUTION OF THIS ORDER ACCEPTANCE AND STANDARD TERMS AND CONDITIONS OF SALE (“AGREEMENT”), WHICH IS IN LIEU OF ANY ADDITIONAL OR DIFFERENT TERMS CONTAINED IN BUYER’S PURCHASE ORDER OR OTHER DOCUMENT OR COMMUNICATION PERTAINING TO BUYER’S ORDER OR THE GOODS. BUYER’S ASSENT TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT SHALL BE CONCLUSIVELY PRESUMED FROM BUYER’S ACCEPTANCE OF ALL OR ANY PART OF THE GOODS OR FROM PAYMENT BY BUYER FOR ALL OR ANY PART OF THE GOODS. NONE OF THESE TERMS AND CONDITIONS MAY BE ADDED TO, MODIFIED, SUPERCEDED OR OTHERWISE ALTERED, EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY AN AUTHORIZED EXECUTIVE OF SELLER. FAILURE OF SELLER TO OBJECT TO ANY TERMS OR CONDITIONS WHICH MAY BE CONTAINED IN ANY DOCUMENT OR FORM OF BUYER SHALL NOT BE CONSTRUED AS A WAIVER OF THESE CONDITIONS, NOR AS AN ACCEPTANCE OF ANY SUCH TERMS AND CONDITIONS.
Payment terms are fifty percent (50%) of the total Purchase Price (“Deposit”) due within 15 days of the execution of this Agreement by both parties. The balance of the total Purchase Price is due prior to shipment from Seller’s facility in Arnold, Missouri.
Unless otherwise agreed in writing by the parties, Buyer shall purchase the Goods from Seller at the price(s) set forth in Seller’s quotation on page 1 of this Agreement. All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
In addition to paying the quoted Purchase Price, Buyer is solely liable for any excises, levies or taxes which Seller may be required to pay or collect, under any existing or future law, upon or with respect to the sale, purchase, delivery, storage, processing, use, consumption or transportation of any of the goods supplied under this Agreement (“Goods”), and Buyer agrees to pay the amount thereof on the same terms as it shall pay the quoted Purchase Price.
Seller warrants that the Goods supplied hereunder shall conform to the description stated on page 1 of this Agreement for a period of one (1) year from the date of issuance of Seller’s Certificate of Conformance, or sixteen (16) shots per tube, whichever occurs first. THE FOREGOING WARRANTY IS SELLER’S SOLE WARRANTY WITH RESPECT TO THESE GOODS. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED. SELLER’S LIABILITY FOR BREACH OF WARRANTY HEREUNDER IS LIMITED SOLELY TO THE REPLACEMENT OF THE DEFECTIVE GOODS, WHICH SHALL BE RETURNED TO SELLER’S PLANT, TRANSPORTATION CHARGES PREPAID BY BUYER.
Limitation of Liability.
SELLER NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THE TERMS OF THIS AGREEMENT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH ANY SUCH CLAIM MAY BE BASED. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY HEREUNDER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE PURCHASE PRICE AMOUNT PAID BY BUYER TO SELLER FOR SUCH GOODS HEREUNDER.
Shipments, deliveries and performance of work by Seller shall, at all times, be subject to the approval of and requirements of the credit department of Seller, including the requirement that Buyer pay part or all of the Purchase Price in advance. Seller hereby retains a purchase money security interest in all Goods not paid for in full by Buyer.
Governing Law; Jurisdiction; Venue.
This Agreement, and the application and interpretation hereof, shall be subject to and governed exclusively by its terms and by the laws of the State of Missouri, without regard to its conflict of laws provisions. The parties agree that proper jurisdiction and venue for resolution of any and all disputes hereunder shall be exclusively in the State Courts of Missouri and/or the United States District Court serving such County.
If Buyer requests deferral of deliveries, Seller’s agreement to defer delivery shall not excuse Buyer from its obligation to pay for the Goods at the same times and in the same amounts as the original delivery schedule. In addition to adhering to the original payment schedule, Buyer shall pay such storage charges as Seller may assess for storing the goods awaiting delivery. If Buyer requests deferral prior to commencement of production, Seller may require progress payments in connection with expenses for materials and services incurred by Seller in anticipation of production.
Delivery; Title; Risk of Loss.
Unless otherwise agreed in writing by the parties, delivery shall be made ExWorks Seller’s facility in Arnold, Missouri (the “Delivery Point”) in accordance with Incoterms 2010. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. Seller may, in its sole discretion, without liability or penalty, make partial shipments of the Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the Goods shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. All quoted delivery dates are estimates and are non-binding on Seller. The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery, unless Buyer can provide conclusive evidence proving the contrary.
Compliance with Laws.
Buyer shall comply with all applicable laws, regulations and ordinances and maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations hereunder. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods herein or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. If any governmental authority imposes antidumping or countervailing duties or any other penalties on any Goods, Seller may terminate its obligations hereunder.
This Agreement is subject to United States export laws and regulations controlling the export, re-export, diversion and resale of the products the subject of this Agreement, including any software, documentation, technical data, and confidential information (collectively, “U.S. Export Controls”). These U.S. Export Controls include, but are not limited to, the United States International Traffic in Arms Regulations (ITAR), the United States Export Administration Act and the United States Department of Commerce Export Administration Regulations. Buyer acknowledges and agrees to be responsible for compliance with these U.S. Export Controls and to not engage in any course of conduct that would be in violation of the U.S. Export Controls. Not by way of limitation of the foregoing, Buyer shall not export, re-export, divert or resell the products the subject of this Agreement, including any software, documentation, technical data, or confidential information, in violation of U.S. Export Controls. Performance of this Agreement is contingent upon compliance with all the export laws and regulations of the United States. If applicable, this Agreement shall become void if (a) any such law or regulation cannot be complied with, (b) this Equipment is prohibited from being exported at any time by the United States Government, or (c) the Parties are not able to secure appropriate export authorization from the United States Government after making good faith efforts.
The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riots, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Intellectual Property Rights.
Buyer acknowledges and agrees that: (a) any and all of Seller’s Intellectual Property Rights (as hereinafter defined) are the sole and exclusive property of Seller or any applicable its licensors; (b) Buyer shall not acquire any ownership interest in any of Seller’s Intellectual Property Rights; and (c) Buyer shall use Seller’s Intellectual Property Rights solely for purposes of using the Goods and only in accordance with the terms of this Agreement and the instructions of Seller. “Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (i) patents; (ii) trademarks; (iii) works of authorship, expressions, designs and design registrations, whether or not copyrightable; (iv) trade secrets; and (v) all industrial and other intellectual property rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing.
Seller to provide the Goods to Buyer in their standard crates that do not require any special handling.
After Buyer’s acceptance of this Agreement, if Buyer cancels its order after ninety (90) days of such acceptance, Buyer will be responsible to Seller for the full Purchase Price amount and will remit the balance thereof to Seller within seven (7) days of cancellation.