Terms and Conditions of Sale
ARC MACHINES, INC. TERMS AND CONDITIONS OF SALE
ONLY TERMS AND CONTAINED IN STANDARD LEASE OR RENTAL AGREEMENTS ARE PREPARED BY ARC MACHINES, IN MAY SUPERSEDE, AMEND OR MODIFY THOSE HEREBELOW.
1. PARTIES: Seller hereunder is Arc Machines, Inc. Buyer hereunder is the party referred to on the face of Seller's invoice or in the Quotation to which this relates.
2. TAXES, DUTIES AND TRANSPORTATION: Applicable excise, sales, use and similar taxes, duties, export fees, transportation charges and costs of insurance, demurrage or bonds of any kind are not included in the pricing and shall be paid by Buyer. In lieu of any tax, Buyer may provide Seller with a tax exemption certification acceptable to the taxing authorities.
3. DELIVERY, TITLE AND RISK OF LOSS: Unless expressly stated otherwise on the face of Seller's Invoice or in Seller's written Quotation applicable hereto, all shipments are FOB factory, Pacoima, California, except for exports; export shipments are, at Seller’s discretion, EXW or FCA (per INCOTERMS 1990) Seller's U.S. factory or U.S. port of export or Seller's branch office or other location designated by Seller. Risk of loss or damage to Goods shall pass to Buyer upon delivery to the carrier. Buyer shall have the responsibility to obtain and pay for insurance and for dealing with the carrier and/or insurer. Buyer shall notify Seller in writing relative to any shortages or defects within ten (10) days from receipt of shipment. At least thirty (30) days prior to the scheduled delivery date for Goods purchased hereunder, Buyer shall provide Seller with written instructions regarding the destination to which the Goods are to be shipped, choice of carrier and type of conveyance. In the absence of such specific instructions, Goods will be packaged and shipped in accordance with Seller's standard practices. Title to Goods and light of ownership shall pass to Buyer conditioned upon and only upon Sellers receipt of full payment therefor, and Seller hereby reserves a security interest therein to secure such payment.
4. FORCE MAJEURE: Seller shall not be liable for delays in delivery or for failure to manufacture due to causes beyond its reasonable control, including but not limited to acts of God, acts or omissions of buyers acts or omissions of any civil or military authority, fire, terrorism, strikes, delays, losses or damage in transportation, and inability to obtain necessary materials. In the event of any such delay, Buyer agrees that the date of delivery shall be extended for a period equal to the time lost by reason of the delay without penalty to Seller.
5. DELIVERY DOCUMENTATION: Buyer shall be responsible for obtaining and providing to Seller import or export certificates, licenses, letters of credit and other documentation of any nature necessary to enable Seller to deliver the Goods. In the event all such items are not received by Seller at least thirty (30) days prior to the scheduled delivery date, Seller shall have the right to reschedule delivery and/or reassign scheduled Goods. All such rescheduling and reassignment shall be deemed to have been made for the convenience of Buyer and is subject to reasonable administrative and other charges payable to Seller.
6. FINAL INSPECTION AND ACCEPTANCE: Final inspection and acceptance shall be made by Buyer at Seller's facility. Unless Buyer notifies Seller, in a timely manner, of other final inspection location or procedures in writing and some is agreed to by Seller in writing, Buyer shall be conclusively presumed to have accepted the Goods upon delivery by Seller to carrier.
Seller warrants, to the original Buyer only, that the Goods, excluding
consumables, delivered herewith or hereafter, will be free from defects in
workmanship or material for a period of one [1) year from the date of the
shipment. This warranty shall apply only to items manufactured by Seller or by
an affiliate of Seller: without limiting the foregoing, this warranty
specifically excludes such items as may be attached to or installed, at the
request of the Buyer, into Goods manufactured by Seller. This warranty shall
terminate and become void if Goods shipped by Seller are (i) altered, modified
or repaired by anyone other than Seller or Seller's authorized repair
personnel, or (ii) connected to or used with items manufactured by anyone other
than Seller or Seller's parent company (excepting only test equipment approved
by Seller), or (iii) not used and maintained in accordance with Seller's
Seller's sole liability and Buyers sole remedy for breach of warranty shall be the replacement, repair or adjustment, at Seller's option, delivered at Buyer's expense to the place of manufacture or authorized repair station, of defective warranted Goods with respect to which Buyer claims a breach of warranty by written notice to Seller received by Seller within one (I) year from the date of shipment of such Goods. All items claimed to be in breach of this warranty must be returned by Buyer to place of manufacture or authorized repair station, at Buyer's expense, and will be returned to Buyer, at buyer's expense.
IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT CAUSED BY OR RESULTING FROM THE NEGLIGENCE OF SELLER, THERE ARE NO EXPRESS WARRANTIES OTHER THAN THOSE DESCRIBED HEREIN; AND NO WARRANTIES BY SELLER SHALL BE IMPLIED OR OTHERWISE CREATED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH WARRANTIES ARE HEREBY DISCLAIMED.
The warranties herein are in lieu of all other warranties express, implied or statutory, including without limitation warranties of fitness for a particular purpose and merchantability, and this provision sets forth Buyer's exclusive remedy in connection with such warranties.
8. INSTALLATION, MAINTENANCE AND OTHER SERVICE: limited to the terms and provisions stated in Seller's standard 'Service' statement, incorporated herein by reference.
9. CHANGES: Seller reserves the right to modify the Goods, in whole or in part, at no cost to Buyer, at any time prior to delivery in order to include electrical or mechanical improvements deemed appropriate by Seller, but it is agreed that Seller shall have no obligation to modify the Goods before or after delivery.
10. PAYMENT TERMS: Unless otherwise expressly provided on Seller's Invoice or in Seller's written Quotation applicable hereto, payment terms are N et 30 days from date of Invoice, in U.S. $. Buyer agrees to submit such financial information from time to time as may be reasonably requested by Seller. Buyer acknowledges that Seller shall have the right to determine Buyer's credit limit and to change payment terms from time to time at Seller's discretion. In the event Buyer exceeds its credit limit, foils to make payments when due or otherwise defaults or commits a breach hereunder, Seller shall have the right, without prior notice, to suspend credit, delay shipment, alter the terms of payment, cancel any orders, demand cash payment or return of Goods and/or pursue any other remedies available at law or in equity all of the foregoing being cumulative. Seller shall charge one and one half percent (1- 1/2%) per month on overdue accounts and shall impose customary administrative, restocking or other charges in connection with any Goods canceled, reassigned or rescheduled pursuant hereto. The cost of bank and other fees and charges in connection with letters of credit and related documentation shall be for the account of Buyer. In the case of partial shipments, pro-rated payments shall become due on each shipment in accordance with the payment terms set forth herein.
11. RESCHEDULING AND CANCELLATION:
Buyer may not cancel this contract or reschedule delivery.
12. SOFTWARE AND DOCUMENTATION: Software, including but not limited to Object code software and/or font software (all software separately and collectively referred to hereinafter as 'Software') included in the Goods and documentation, including but not limited to drawings, manuals and the like, is provided by Seller hereunder solely for use in the operation and maintenance of the Goods. Software is, or may be, contained in various media including but not limited to ROM, PROM, RAM, diskette and disk.
THIS SOFTWARE AND DOCUMENTATION IS AND SHALL REMAIN THE EXCLUSIVE PROPERTY OF SELLER AND/OR ITS LICENSORS, AND NO TITLE TO, OWNERSHIP OR OTHER INTEREST IN THE SOFTWARE OR DOCUMENTATION IS HEREBY TRANSFERRED TO BUYER.
Seller grants to Buyer a limited license to use Software solely in connection with the Goods. The Software and documentation shall not be copied and shall not be used connection with any other equipment or for any other purpose without prior express written consent of Seller.
Buyer shall not alter, obscure or remove any copyright, legend, logo, trademark or other notice or identifying sign associated with the Software or documentation appearing in any Software or documents or in or upon any Software media or any training, maintenance or other documentation which includes or makes reference to the Software or documentation or in or upon any Goods delivered to Buyer in association with said Software or documentation.
As a condition of the Software license granted herein, Buyer agrees, and shall cause its successors and anyone else using the Goods to agree to abide by the above terms and conditions, together with the terms and conditions of any licensing agreement packaged or provided with the Goods or other item containing the Software.
Without limiting the foregoing, Buyer shall not for any purpose publish, copy or otherwise reproduce in any form the Software or documentation provided hereunder without the prior express written consent of Seller.
13. DISCONTINUANCE: Seller reserves the right to discontinue availability of Goods or parts therefor sold hereunder at any time without liability to Buyer.
14. WORK OFF SELLERS PREMISES: In the event of any work in connection herewith by Seller off Seller's premises. Buyer shall take (or cause its customers to take) all necessary precautions to prevent the occurrence of any injury to any person or property, including personnel and property of Seller, during the progress of such work and shall indemnify and hold Seller harmless from all claims, losses, and liabilities relating to damage, injury or death to any person or property whatsoever.
15. NON·WAIVER OF DEFAULT: Seller's failure to insist upon strict performance of anyone or more of the provisions contained herein shall in no way constitute a waiver of its rights, at low or in equity, and shall not constitute a waiver by Seller of any other provision or any prior, concurrent or subsequent default by Buyer in the performance of or compliance with any of the terms and conditions set forth herein. Should legal action become necessary to enforce any of the terms and conditions set forth herein, Buyer shall pay to Seller all expenses incurred in connection with such action, including reasonable attorney's fees.
16. LIMITATION OF LIABILITY: IN NO EVENT SHALL SELLER BE LIABLE FOR ANY COLLATERAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR EXEMPLARY DAMAGES ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT OR ANY GOODS SOLD PURSUANT HERETO.
17. GOVERNING LAW AND RELATED MATTERS: This Agreement and all actions and proceedings arising out of or relating hereto snail be governed, construed and interpreted in accordance with the laws of California. All actions and proceedings relating to this Agreement shall be maintained in a court located in Los Angeles County, California, and the parties hereto consent to the jurisdiction and venue in said court and waive any objection to such venue.
18. EXPORT: In the event Buyer exports or re-exports the Goods, Buyer is herewith informed that export shipment or diversion to certain countries may be prohibited by U.S. law or the law of other countries) without special permits or entirely, and Buyer shall have full and sole responsibility for obtaining all necessary approvals, licenses and permits and to pay all fees, duties, penalties and the like which may be required by any regulatory or government body upon export. Buyer agrees to abide by the rules and regulations of the U.S. Department of Commerce, Office of Export Administration, when exporting or re-exporting the Goods, Software, spare parts or other items sold or licensed hereunder.
19. TRADEMARKS: Buyer shall have no right to use Seller's or its licensors' trademarks, trade names, logos or other indicia without prior express written permission of Seller. Buyer is not and shall in no way hold itself out as a distributor or representative of Seller without prior express written permission of Seller.
20. ASSIGNMENT: Delegation or Assignment by Buyers of any or all of its duties, obligations or rights hereunder, without prior express written consent of Seller, shall be void.
21. SEVERABILITY: If any provision herein shall be held to be invalid or unenforceable for any reason, such provision shall, to the extent of such invalidity or unenforceability, be severed, but without in any way affecting the remainder of such provision or any other provision contained herein, all of which shall continue in full force and effect.
22. CAPTIONS: Captions are for convenience of reference only and shall not modify limit or otherwise affect, or be used in the construct ion of, any of these terms and conditions.
23. COMPLETE AGREEMENT: Buyer understands and agrees that acceptance by Seller of any Purchase Order issued by Buyer in connection with the applicable Quotation and/or Invoice is limited to, subject to and expressly made conditional upon Buyer's assent to the terms and conditions set forth hereinabove and/or upon the face of Seller's Invoice and/or Seller's Quotation. The Agreement so formed constitutes the entire agreement between Seller and Buyer concerning the subject matter hereof, supersedes all prior communications and agreements, written and oral, and is intended by the parties to be a complete and exclusive statement of the terms and conditions of the agreement between them. Any terms and conditions appearing in Buyer's Purchase Order or in any other writing received from Buyer which are different from or in addition to the terms and conditions contained hereinabove and/or on the face of Sellers Invoice are null and void and of no force or effect. This Agreement may be modified only by a writing signed by authorized representatives of both parties.