TERMS AND CONDITIONS OF
SALE
For the purposes of these Terms and Conditions
of Sale, the term “contract” shall mean the agreement between
Viscotek Corporation (“Supplier”) and Buyer arising as a result of Buyer’s
submission of an order for Supplier's products. Such contract shall be deemed to
incorporate and be governed by these Terms and Conditions.
THESE TERMS AND CONDITIONS SHALL TAKE
PRECEDENCE OVER ANY TERMS AND CONDITIONS WHICH APPEAR IN BUYER’S ORDER OR IN ANY
DOCUMENTS INCORPORATED BY REFERENCE IN BUYER’S ORDER.
No term or condition of Buyer’s order additional to or different from
these Terms and Conditions shall become part of the contract unless explicitly agreed
to in writing by Supplier. Retention
by Buyer of any products delivered by Supplier, or payment by Buyer of any invoice
rendered hereunder, shall be conclusively deemed acceptance of these Terms and Conditions. Supplier’s failure to object to any
provision contained in any communication from Buyer shall not be construed as a
waiver of these Terms and Conditions nor as an acceptance of any such provision.
1.
Quotations: Prices, specifications
and dates for delivery referenced in Supplier's quotations are for information
purposes only and shall not be binding on Supplier until all technical requirements
have been agreed and Supplier has accepted Buyer's order. Quotations terminate if
not accepted by Buyer within 60 days.
2.
Orders:
By submitting an order to Supplier,
Buyer agrees to be subject to these Terms and Conditions of Sale in their entirety. All orders must be bona fide commitments
showing definite prices and quantities and mutually agreed shipping dates.
No order, whether or not submitted in response to a quotation by Supplier,
shall be binding upon Supplier until accepted in writing by Supplier.
3.
Prices and Taxes:
Prices do not include federal, state or local taxes, including without
limitation sales, use or excise taxes now or hereafter enacted, applicable to the
products sold in this transaction, which taxes may, in Supplier’s discretion, be
added by Supplier to the sales price or billed separately and which taxes shall
be paid by Buyer unless Buyer provides Supplier with any necessary tax exemption
certificate.
4.
Shipment and Delivery:
All products will be shipped F.O.B. Supplier’s premises and may be so
shipped in several lots. In the absence
of specific instructions, Supplier will select the carrier and ship “collect”, but
shall not be deemed thereby to assume any liability in connection with the shipment
nor shall the carrier be construed to be the agent of Supplier.
Buyer must provide its own insurance.
Title and risk of loss or damage to all products sold hereunder shall pass from
Supplier to Buyer upon delivery by Supplier to the possession of the carrier, provided
that Supplier reserves a purchase money security interest in the products.
Any claims for loss, damage or misdelivery thereafter shall be filed with
the carrier. All products shall be deemed finally inspected and accepted within
ten days after delivery unless notice of rejection is given in writing to Supplier
within such period. Acceptance shall constitute acknowledgement of full performance
by Supplier of all obligations under the contract except as stated at Section 10
(Warranties).
5.
Terms of Payment:
Each shipment shall be a separate transaction and Buyer will be invoiced
on date of dispatch. Unless otherwise stated on Supplier’s invoice, terms of payment
shall be net thirty (30) days from date of invoice. Supplier may, in its sole discretion,
determine at any time that Buyer's financial condition requires payment in advance,
and, if such requirement is not met,
may cancel the order or any part thereof and receive reasonable cancellation fees. If Buyer fails to pay any payment due
hereunder when due, Supplier may recover, in addition to the payment, interest thereon
at the rate of 1 1/2% per month where lawful, otherwise the maximum lawful monthly
interest rate, and reasonable attorney’s fees.
6.
Security Interest: Buyer
hereby grants to Supplier a security interest in all Supplier products sold to Buyer
as security for the due and punctual performance by Buyer of all of its obligations
hereunder. Buyer agrees to execute
such documents to evidence and perfect said security interest as Supplier may require,
including without limitation financing statements on Form UCC-1.
7.
Contingencies:
Supplier shall not be liable for any delay in delivery or for non-delivery,
in whole or in part, caused by the occurrence of any contingency beyond the control
of Supplier, including, by way of illustration but not limitation, war (whether
an actual declaration thereof is made or not), sabotage, insurrection, riot or other
act of civil disobedience, act of a
public enemy, failure or delay in transportation, act of any government or any agency
or subdivision thereof, judicial action, labour dispute, accident, fire, explosion,
floods, storm or other act of God, shortage of labour, fuel, raw material or machinery
or technical failure where Supplier has exercised ordinary care in the prevention
thereof. If any such contingency occurs,
Supplier may allocate production and deliveries among Supplier’s customers.
8.
Equipment:
Supplier may modify specifications provided the modifications do not
adversely affect the performance of the equipment to be supplied under the contract
("the equipment"). In addition, Supplier
may furnish suitable substitutes for materials unobtainable because of priorities
or regulations established by government authority, or nonavailability of materials
from suppliers.
9.
Software:
Supplier shall at all times have and retain title and full ownership
of all software, firmware programming routines, and documentation thereof supplied
by Supplier for use with the equipment, and of all copies thereof made by Buyer
(collectively “software”). Supplier grants Buyer a non-exclusive and non-transferable
licence to use such software solely for use with the equipment. Buyer shall take
all reasonable steps to protect Supplier's proprietary interest in the software
and shall not transfer or otherwise provide the software to any third party.
10.
Limitation of Warranties:
A. Supplier warrants that all equipment shall be free from
defects in material and workmanship under normal use for a period of one year from
date of shipment to Buyer save that Supplier does not warrant that operation of
the software will be completely uninterrupted or error free or that all program
errors will be corrected. Buyer shall be responsible for determining that the equipment
is suitable for Buyer's use and that such use complies with any applicable local,
state or federal law. Provided that Buyer notifies Supplier in writing of any claimed
defect in the equipment immediately upon discovery and any such equipment is returned
to the original shipping point, transportation charges prepaid, within one year
from date of shipment to Buyer and upon examination Supplier determines to its satisfaction
that such equipment is defective in material or workmanship, i.e. contains a defect
arising out of the manufacture of the equipment and not a defect caused by other
circumstances, including, but not limited to accident, misuse, unforeseeable use,
neglect, alteration, improper installation, improper adjustment, improper repair,
or improper testing, Supplier shall at its option repair or replace the equipment,
shipment to Buyer prepaid. Supplier
shall have reasonable time to make such repairs or to replace such equipment. Any
repair or replacement of equipment shall not extend the period of warranty. This
warranty is limited to a period of one year, without regard to whether any claimed
defects were discoverable or latent on the date of shipment.
B. If Buyer shall
fail to pay when due any portion of the purchase price or any other payment required
from Buyer to Supplier under this contract or otherwise, all warranties and remedies
granted under this Section 10 may, at Supplier’s option, be terminated.
C. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER
REPRESENTATIONS, WARRANTIES AND COVENANTS, EXPRESS OR IMPLIED, WITH RESPECT TO THE
EQUIPMENT AND ANY DEFECTS THEREIN OF ANY NATURE WHATEVER, INCLUDING WITHOUT LIMITATION
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SUPPLIER SHALL
NOT BE LIABLE FOR, AND BUYER ASSUMES ALL RISK OF, ANY ADVICE OR FAILURE TO PROVIDE
ADVICE BY SUPPLIER TO BUYER REGARDING THE EQUIPMENT OR BUYER'S USE OF THE SAME.
UNDER NO CIRCUMSTANCES SHALL SUPPLIER BE LIABLE TO BUYER UNDER ANY TORT, NEGLIGENCE,
STRICT LIABILITY, OR PRODUCT LIABILITY CLAIM AND BUYER AGREES TO WAIVE SUCH CLAIMS.
SUPPLIER’S SOLE AND EXCLUSIVE LIABILITY, AND BUYER’S SOLE AND EXCLUSIVE REMEDY,
FOR ANY NONCONFORMITY OR DEFECT IN THE PRODUCTS OR ANYTHING DONE IN CONNECTION WITH
THIS CONTRACT, IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL BE
AS SET FORTH IN SUBSECTION 10A HEREOF AS LIMITED BY SUBSECTION 10B HEREOF. THIS
EXCLUSIVE REMEDY SHALL NOT HAVE FAILED OF ITS ESSENTIAL PURPOSE (AS THAT TERM IS
USED IN THE UNIFORM COMMERCIAL CODE) PROVIDED THAT THE SELLER REMAINS WILLING TO
REPAIR OR REPLACE DEFECTIVE EQUIPMENT (AS DEFINED IN SUBSECTION 10A) WITHIN A COMMERCIALLY
REASONABLE TIME AFTER RECEIVING SUCH EQUIPMENT. BUYER SPECIFICALLY ACKNOWLEDGES
THAT SELLER'S PRICE FOR THE EQUIPMENT IS BASED UPON THE LIMITATIONS OF SUPPLIER'S
LIABILITY AS SET
FORTH
IN THIS CONTRACT.
11.
Patents: Supplier shall defend any suit or
proceeding brought against Buyer to the extent that it is based on a claim that
any equipment manufactured by Supplier infringes in construction or design a United
States patent, and shall indemnify Buyer against all costs, damages and expenses
finally awarded against Buyer provided that Buyer notifies Supplier promptly in
writing of any such claim and gives Supplier full and complete authority, information
and assistance for the defense of such claim and provided further that Supplier
shall have sole control of the defense and of the negotiations for settlement, if
any, of such claim. If any such equipment
is held in construction or design directly to infringe any United States patent
and the use of said equipment is enjoined, or in case any equipment may, in the
opinion of Supplier, be held to infringe,
Supplier may, at its expense and option, either (a) procure for Buyer the right
to continue using said equipment, (b) replace said equipment with a suitable noninfringing
product, (c) suitably modify said equipment, or (d) refund the purchase price of
said equipment, less depreciation at twenty percent (20%) per year, and accept its
return. Supplier shall not be liable for any cost or expense incurred without Supplier’s
written authorization. Supplier shall not be obligated to defend or be liable for
costs and damages if the infringement arises out of compliance with Buyer's specification
or from a combination with or an addition to equipment not manufactured or developed
by Supplier or a modification of the equipment after delivery or the use of equipment
beyond that established by Supplier or approved in writing by Supplier. THE FOREGOING
STATES THE ENTIRE LIABILITY OF SUPPLIER, AND THE EXCLUSIVE REMEDY OF BUYER, WITH
RESPECT TO ANY ALLEGED PATENT INFRINGEMENT BY THE SAID EQUIPMENT.
12.
Limitation of Liability and Buyer Indemnity: IN NO EVENT, REGARDLESS
OF THE FORM OF ACTION, SHALL SUPPLIER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL,
OR CONSEQUENTIAL LOSSES OR DAMAGES ARISING OUT OF THE SALE OF ITS PRODUCTS TO BUYER
OR ARISING OUT OF ANYTHING DONE IN CONNECTION WITH THE CONTRACT, INCLUDING, BUT
NOT LIMITED TO, LOSSES OR DAMAGES ARISING
OUT OF CLAIMS FOR LOSS OF USE, BUSINESS, GOODWILL, OR PROFITS, AND CLAIMS ARISING
OUT OF THIRD PARTY ACTIONS, REGARDLESS OF WHETHER SUCH THIRD PARTY ACTIONS, OR ANY
OTHER CLAIMS, LOSSES, OR DAMAGES, WERE REASONABLY FORESEEABLE TO BUYER OR SUPPLIER.
BUYER'S EXCLUSIVE REMEDY ARISING OUT OF ITS PURCHASE AND USE OF SUPPLIER'S PRODUCTS,
OR ARISING OUT OF ANYTHING DONE IN CONNECTION WITH THE CONTRACT, SHALL BE FOR DAMAGES
AND NO CLAIM OR CLAIMS OF ANY KIND, WHETHER BASED UPON CONTRACT, WARRANTY, TORT
(INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WARRANTY AND STRICT LIABILITY), STATUTORY
OR REGULATORY PROVISIONS, INDEMNITY, CONTRIBUTION, OR OTHERWISE, SHALL BE GREATER
IN AMOUNT IN AGGREGATE THAN THE PURCHASE PRICE OF THE PRODUCTS IN RESPECT OF WHICH
DAMAGES ARE CLAIMED.
Buyer shall indemnify and hold harmless Supplier,
its officers, agents, employees, subsidiaries, parents, affiliates and insurers
from and against any and all liabilities, damages, losses, claims, lawsuits, including
costs and expenses in connection therewith, for death or injury to any persons or
loss of any property whatsoever, caused in any manner by Buyer's possession, use
or operation of equipment.
13.
Proprietary Information:
Buyer represents that it has adopted reasonable procedures to protect Proprietary
Information, as defined hereafter, including binding agreements with employees and
consultants to prevent unauthorised publication, disclosure or use of such during
or after the term of their employment by or services for Buyer.
Buyer shall not use Proprietary Information except as required for the use
of the equipment, shall not disclose Proprietary Information to any third party,
and shall not transmit any documents or copies thereof containing Proprietary Information
to any third party, except as may be authorised in writing by Supplier. This Section
13 shall survive termination of the contract.
“Proprietary Information” shall
mean information or data of Supplier, or a third person to whom Supplier owes obligations
of confidentiality, and which is furnished or to be furnished to Buyer in written,
graphic or machine-readable form and is marked proprietary or confidential. Where copies or alternative forms of
information or data are received from Supplier, such information or data shall be
considered Proprietary Information if at least one of said copies or alternative
forms is marked proprietary or confidential.
This Section 13 shall not apply
to information which Buyer demonstrates was in Buyer’s possession prior to receipt
from Supplier or information which Buyer demonstrates is or has become available
to the public or general knowledge in the industry otherwise than through the fault
of Buyer.
14.
Rescheduling and Cancellation:
Orders accepted by Supplier may be cancelled or rescheduled by Buyer only with the
written consent of Supplier (which consent Supplier may withhold for any reason)
and upon payment of Supplier's cancellation or rescheduling charges.
Supplier shall have the right without penalty or payment to cancel any order
accepted (i) if Buyer fails to make any payment when due to Supplier under the contract
or any other contract (ii) if any act or omission of Buyer delays Supplier’s performance,
(iii) if Buyer violates any of these Terms and Conditions, or (iv) if Buyer’s credit
becomes impaired; and in the event of such cancellation Supplier shall be entitled
to receive reimbursement for its reasonable and proper cancellation charges.
15.
Non-Waiver; Remedies: No waiver of any breach of these Terms and Conditions
shall constitute a waiver of any prior or subsequent breach of any similar or dissimilar
provision or a modification of the contract. All Supplier rights and remedies, whether
evidenced hereby or by any other contract or document, shall be cumulative and nonexclusive
and may be exercised singularly or concurrently.
16.
Applicable Law and Actions to Recover Damages:
The validity, performance and construction of the contract shall be governed
by the laws of the
Massachusetts
.
If any provision of these Terms and Conditions is held to be unenforceable,
such holding shall not affect the enforceability of any other provision.
Any legal presumption that terms in this contract shall be strictly construed
against the party who drafted such terms or who benefits from such terms shall not
be employed in construing and interpreting this contract. Prior to commencement
of any legal proceedings, Buyer and Supplier shall meet at a senior level to attempt
to resolve differences. Notwithstanding any attempts to resolve differences or negotiations
regarding such differences, any action brought by Buyer against Supplier arising
out of this contract or Buyer's purchase and use of the equipment must be commenced
within one year after such action accrues and in no event later than two years after
date of shipment of such equipment.
17.
Government Contracts: If
the products to be furnished under the contract are to be used in the performance
of a U.S. Government contract or subcontract, the Government contract number and
a statement to that effect shall appear on Buyer’s purchase order.
If Buyer’s purchase order includes all of said information and if said order
is accepted in writing by Supplier, then those clauses of the applicable Government
procurement regulations which are mandatorily required by Federal statute or regulation
to be included in this contract shall be incorporated herein by reference.
In all other events, said clauses shall not be incorporated herein by reference.
18.
Export: Regardless of any
disclosure made by Buyer to Supplier of the ultimate destination of Supplier products,
Buyer shall not export either directly or indirectly any Supplier product, or any
system incorporating said product either in contravention of statute or regulation
or without first obtaining all required licences and permits from the United States
Department of Commerce and any other relevant agencies or departments of the United
States government.
19.
Assignment: The contract
shall be binding upon and inure to the benefit of the parties and their respective
legal representatives, successors and permitted assigns.
The contract is personal to Buyer, and Buyer may not assign any of its rights
or delegate any of its obligations thereunder, in whole or in part, without the
prior written consent of Supplier which may be withheld for any reason.
20.
Complete Agreement; Modifications:
This contract constitutes the entire agreement between the parties relating to the
sale of the equipment and no addition to or modification of any provision of said
agreement shall be binding upon Supplier unless agreed in writing by Supplier.
21.
Notices: All notices given
under the contract shall be in writing, mailed by first class mail, certified or
registered, or delivered by hand to the address of the other party set forth in
the quotation or to such other address as such party may designate from time to
time by such notice, and shall take effect when received.