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1. GENERAL - Ogden Manufacturing Company is herein referred to as Ogden or the "Seller"
and the customer or person or entity purchasing products ("Products")
from Seller is referred to as the "Buyer." These Terms
and Conditions, any price list or schedule, quotation, acknowledgment
or invoice from Seller relevant to the sale constitute the complete
and exclusive statement of the terms of the agreement governing
the sale of Products by Seller to Buyer. Buyer's acceptance of
the Products will manifest Buyer's assent to these terms and
conditions. Seller reserves the right in its sole discretion
to refuse orders.
2. PRICES
AND TAXES
- All prices are subject
to change by Seller without notice. All prices specified herein
are exclusive of any costs of any sales, use, value added, excise,
gross receipts, business and occupation or similar present or
future taxes imposed by any governmental body on the sale, delivery,
use or other handling of the Products or in connection with any
related or contemplated transactions.
3. EXCUSE
OF PERFORMANCE
- Seller shall not be responsible
for non-performance or delays in performance due to acts of God;
acts of Buyer; war; fire; flood; weather; sabotage; strikes or
labor disputes; civil disturbances or riots; governmental requests,
restrictions, allocations, laws, regulations, orders or actions;
unavailability of or delays in transportation; default of suppliers;
or unforeseen circumstances or any events or causes beyond Seller's
reasonable control. Deliveries or other performance may be suspended
for an appropriate period of time or canceled by Seller upon
notice to Buyer in the event of any of the foregoing, but the
balance of the agreement shall otherwise remain unaffected as
a result of the foregoing. If Seller determines that its ability
to supply the total demand for the Products, or to obtain material
used directly or indirectly in the manufacture of the Products,
is hindered, limited or made impracticable due to causes set
forth in the preceding paragraph, Seller may allocate its available
supply of the Products or such material (without obligation to
acquire other supplies of any such Products or material) among
itself and its purchasers on such basis as Seller determines
to be equitable without liability for any failure of performance
which may result therefrom.
4. WARRANTY - Subject to the limitations of Section 5, Seller
warrants that the Products manufactured by Seller will be free
from defects in material and workmanship under normal use and
regular service and maintenance for a period of one (1) year
from the date of shipment of the Products by Seller, unless otherwise
specified by Seller in writing. Products purchased by Seller
from a third party for resale to Buyer shall carry only the warranty
extended by the original manufacturer. THIS IS THE SOLE AND
EXCLUSIVE WARRANTY GIVEN BY SELLER WITH RESPECT TO THE PRODUCTS
AND IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING
WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED
TO SELLER IN SPECIFICATIONS, DRAWINGS OR OTHERWISE, AND WHETHER
OR NOT SELLER'S PRODUCTS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED
BY SELLER FOR BUYER'S USE OR PURPOSE.
This warranty does not extend
to any losses or damages due to misuse, accident, abuse, normal
wear and tear, Buyer's negligence,unauthorized modification or
alteration, use beyond rated capacity, or improper installation,
maintenance or application. To the extent that Buyer or its agents
has supplied specifications, information, representation of operating
conditions or other data to Seller in the selection or design
of the Products and the preparation of Seller's quotation, and
in the event that actual operating conditions or other conditions
differ from those represented by Buyer, any warranties or other
provisions contained herein which are affected by such conditions
shall be null and void. If within thirty (30) days after Buyer's
discovery of any warranty defects within the warranty period
or within ten (10) days for quantity discrepancies, Buyer notifies
Seller thereof in writing, Seller shall, at its option, repair,
correct or replace F.O.B. point of manufacture, or refund the
purchase price for that portion of the Products found by Seller
to be defective or missing. Failure by Buyer to give such written
notice within the applicable time period shall be deemed an absolute
and unconditional waiver of Buyer's claim for such defects or
shortages. Products repaired or replaced during the warranty
period shall be covered by the foregoing warranty for the remainder
of the warranty period or ninety (90) days from the date of shipment,
whichever is longer. Buyer assumes all other responsibility for
any loss, damage, or injury to persons or property arising out
of, connected with, or resulting from the use of Products, either
alone or in combination with other products/components.
5. LIMITATION
OF REMEDY AND LIABILITY -
THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER
(OTHER THAN THE WARRANTY PROVIDED UNDER SECTION 6) SHALL BE LIMITED
TO REPAIR, CORRECTION OR REPLACEMENT, OR REFUND OF THE PURCHASE
PRICE UNDER SECTION 6.
SELLER SHALL NOT BE LIABLE
FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE AND IN NO EVENT, REGARDLESS
OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED ON
CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT
OR OTHERWISE), SHALL SELLER'S LIABILITY TO BUYER AND/OR ITS CUSTOMERS
EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC PRODUCTS PROVIDED
BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. BUYER
AGREES THAT IN NO EVENT SHALL SELLER'S LIABILITY TO BUYER AND/OR
ITS CUSTOMERS EXTEND TO INCLUDE INCIDENTAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES. The
term "consequential damages" shall include, but not
be limited to loss of anticipated profits, business interruption,
loss of use or revenue, cost of capital or loss or damage to
property or equipment.
6. PATENTS - Subject to the limitations of the second paragraph
of Section 5, Seller warrants that the Products sold, except
as are made specifically for Buyer according to Buyer's specifications,
do not infringe any valid US patent or copyright in existence
as of the date of shipment. This warranty is given upon the condition
that Buyer promptly notify Seller of any claim or suit involving
Buyer in which such infringement is alleged and cooperate fully
with Seller and permit Seller to control completely the defense,
settlement or compromise of any such allegation of infringement.
Seller's warranty as to use patents only applies to infringement
arising solely out of the inherent operation, according to Seller's
specifications and instructions of such Products. In the event
such Products are held to infringe such a US patent or copyright
in such suit, and the use of such Products in enjoined, or in
the case of a compromise or settlement by Seller, Seller shall
have the right, at its option and expense, to procure for Buyer
the right to continue using such Products, or replace them with
non-infringing Products, or modify same to become non-infringing,
or grant Buyer a credit for the depreciated value of such Products
and accept return of them. In the event of the foregoing, Seller
may also, at its option, cancel the agreement as to future deliveries
of such Products without liability.
7. SPECIAL
TOOLING
- Not withstanding any tool,
die or pattern charges, all tooling and related items shall be
and remain the property of Seller.
8. SHIPMENT
AND DELIVERY - Shipments are made F.O.B. Seller's shipping
point. Risk of loss of damage and responsibility shall pass from
Seller to Buyer upon delivery to and receipt by carrier. Any
claim for shortages or damages suffered in transit are the responsibility
of Buyer and shall be submitted by Buyer directly to the carrier.
Shortages or damages must be acknowledged and signed for at the
time of delivery. While Seller will use all reasonable commercial
efforts to maintain the delivery date(s) acknowledged or quoted
by Seller, all shipping dates are approximate and not guaranteed.
Seller reserves the right to make partial shipments. Seller,
at its option, shall not be bound to tender delivery of any Products
for which Buyer has not provided shipping instructions. If the
shipment of the Products is postponed or delayed by Buyer for
any reason, Buyer agrees to reimburse Seller for any and all
storage costs and other additional expenses resulting therefrom.
9. TERMS OF
PAYMENT
- Unless otherwise specified
by Seller, terms are net thirty (30) days from date of Seller's
invoice in US currency. Seller shall have the right, among other
remedies, either to terminate this agreement or to suspend further
performance under this and/or other agreements with Buyer in
the event Buyer fails to make any payment when due, which other
agreements Buyer and Seller hereby amend accordingly. Buyer shall
be liable for all expenses, including attorney's fees, relating
to the collection of past due amounts. Should Buyer's financial
responsibility become unsatisfactory to Seller, cash payments
or security satisfactory to Seller may be required by Seller
for future deliveries and for the Products theretofore delivered.
If such cash payment or security is not provided, in addition
to Seller's other rights and remedies, Seller may discontinue
deliveries.
10.RETURNS
AND CANCELLATIONS
- In the event Buyer desires
to return Products, prior written approval of an authorized representative
of Seller is required. In the event of approval of a return request,
(I) any allowed outgoing prepaid freight costs will apply, (ii)
all returns must be shipped freight prepaid at Buyer's expense,
and (iii) Buyer must pay Seller's return and restocking charge.
Buyer may cancel orders only upon reasonable advance written
notice and upon Seller's approval and payment to Seller of Seller's
cancellation charges which include, among other things, all costs
and expenses incurred, and, to cover commitments made, by the
Seller and a reasonable profit thereon. Seller's determination
of such cancellation charges shall be conclusive.
11.GENERAL
PROVISIONS
- These terms and conditions
supersede all other communications, negotiations and prior oral
or written statements regarding the subject matter of these terms
and conditions. No change, modification, rescission, discharge,
abandonment, or waiver of these terms and conditions shall be
binding upon the Seller unless made in writing and signed on
its behalf by a duly authorized representative of Seller. No
conditions, usage of trade, course of dealing or performance,
understanding or agreement purporting to modify, vary, explain,
or supplement these terms and conditions shall be binding unless
hereafter made in writing and signed by the party to be bound,
and no modification or additional terms shall be applicable to
this agreement by Seller's receipt, acknowledgment, or acceptance
of purchase orders, shipping instruction forms, or other documentation
containing terms at variance with or in addition to those set
forth herein. No waiver by either party with respect to any breach
or default or of any right or remedy, and no course of dealing,
shall be deemed to constitute a continuing waiver of any other
breach or default or of any other right or remedy, unless such
waiver be expressed in writing and signed by the party to be
bound. All typographical or clerical errors made by Seller in
any quotation, acknowledgment or publication are subject to correction.
12.VARIANCE
IN QUANTITY (VIQ)
- Because of special manufacturing
requirements and processes, Ogden may ship the following Variances
in Quantity:
Order
Quantity
1-5 pieces
6-10 pieces
11-25 pieces
26-50 pieces
51-75 pieces
76-99 pieces
100+ |
VIQ
None
±1
±2
±3
±4
±5
±5 percent |
There is no over shipment
on items with a net value over $125. However, certain items of
extraordinary difficulty may exceed above VIQ. With no VIQ, add
10% to order value.
The validity, performance, and
all other matters relating to the interpretation and effect of
this agreement shall be governed by the law of the state of Delaware.
Buyer and Seller agree that the proper venue for allocations
arising in connection herewith shall be only in Delaware and
the parties agree to submit to such jurisdiction. No action,
regardless of form, arising out of transactions relating to this
contract, may be brought by either party more than two (2) years
after the cause of action has accrued.
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