General
1. (a) Any sale of product or system by HAI Advanced Material Specialists, Incorporated (hereinafter called "Seller") is governed exclusively by these Standard Terms and Conditions of Sale (hereinafter called "Standard Terms") which, unless otherwise agreed by Seller in writing, shall be a part of the sales contract and shall supersede any inconsistent terms on Buyer's purchase order. Buyer's acceptance of Seller's products or systems, or Buyer's signature or acceptance of Seller's order confirmation form shall constitute Buyer's acceptance of these Standard Terms.
1. (b) Any order placed with Seller must be in the form of a written purchase order. All proposals, quotations, bids or other similar communications from Seller will be considered "invitations" to Buyer to submit an offer to contract in the form of a written purchase order. A binding sales contract will result when Seller accepts Buyer's order at Seller's office in Placentia, CA. (or other office designated by Seller) by mailing a letter of acceptance or a confirmation copy of an entered order to Buyer. Upon receipt of Buyer's order, Seller, at its sole discretion, shall evaluate Buyer's then current performance of payment to Seller, and to other suppliers and creditors, and Seller's acceptance of Buyer's order is subject to Seller's satisfaction with such payment performance.
1. (c) Any modification or variation of these Terms must be upon the written approval
Updating of Models:
2. Seller reserves the right to change the design and/or the specifications of the products and systems already ordered by Buyer and accepted by Seller, and Seller may ship the modified products or systems to Buyer without prior notice. Seller also reserves the right to discontinue the manufacture of any particular product or system without prior notice to Buyer.
Warranty:
3. (a) Seller warrants to Buyer only that each new and unused product or system supplied by it is of good workmanship and free from any inherent mechanical defects, provided that it is installed and operated in accordance with Seller's instructions and (subject always to such instructions), in accordance with generally accepted industrial practices, and further provided that the product or system is used under normal conditions for which designed and that it receives due and proper care, lubrications, protection and maintenance under the supervision of competent personnel.
3. (b) This warranty is governed by the provisions of the applicable Seller's published warranty certificate, a copy of which is attached and shipped with the product or system. Specific components of Seller's products or systems may be covered by independent warranties, copies of which may be shipped with the products or systems.
3. (c) Seller does not guarantee production rates or the quality of coatings made using Seller's products or systems.
3.(d) ALL OTHER GUARANTEES, WARRANTIES, CONDITIONS OR REPRESENTATIONS, EITHER EXPRESSED OR IMPLIED, WHETHER ARISING UNDER STATUTE, COMMON LAW, COMMERCIAL USAGE OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED.
3.(e) UNDER NO CIRCUMSTANCES WHATSOEVER SHALL SELLER BE LIABLE TO ANY PERSON, FIRM OR CORPORATION FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, MISREPRESENTATION, OR OTHERWISE, AND WHETHER RESULTING IN LOST PROFITS, LOSS OF INTEREST IN MONEY BORROWED OR INVESTED, IMPAIRMENT OF GOODS, WORK STOPPAGE, OR OTHERWISE, IN ANY WAY ARISING OUT OF ANY TRANSACTIONS TO WHICH THESE STANDARD TERMS APPLY.
Drawings:
4. All illustrations, drawings, etc., issued by Seller or contained in Seller's catalogues, price lists, advertisements, or any other publications must be regarded as approximate representations only, except where otherwise specified. Weights, measurements, capacities and all other particulars of products or systems offered by Seller are stated in good faith as being approximately correct, but no responsibility can be accepted for their accuracy.
Software Agreement:
5. (a) The program in this package is a proprietary product of HAI Advanced Material Specialists, Inc. and is protected by Copyright Law. Seller retains title to and ownership of the program. Buyer is licensed to use the program with the following terms and conditions:
- (1) Buyer may use the program only on one computer or computer terminal at a time.
- (2) Buyer may not transfer rights to use the program to another party. Buyer may not rent or lease the program or otherwise transfer or assign the right to use the program as stated in this paragraph unless written permission of Seller is obtained.
- (3) Buyer may not decompile, disassemble, reverse engineer, or in any way modify the program code without the prior written consent of Seller.
Shipment/ Delivery:
6. (a) Shipment and delivery dates are quoted in good faith and are approximate. Delay in delivery or shipment shall not give Buyer the right to cancel any order. Seller shall not be liable to pay any penalty for delay or failure to ship, nor shall it be bound by any provision for the payment of a penalty of any nature wheresoever contained unless it has, expressly, consented to such, penalty provision in writing.
6. (b) In no event shall Seller be liable for any consequential damages caused by delay or failure to deliver or ship, due especially but not exclusively to force majeure and other causes beyond its reasonable control. The term force majeure shall include but not be limited to war, blockade, civil disturbances, outbreak, strikes and lockouts, labor shortages, fire and other casualties, accidents, governmental acts (including regulation concerning export and import licensing and currency exchange), material shortages and delays in obtaining materials, equipment or transportation.
6. (c) Seller shall have the right to have any goods from Seller's suppliers shipped directly to Buyer. In any event, the products or systems shall travel at Buyer's risk even when the products or systems are sold free at destination or with reservation of title.
6. (d) Notwithstanding any quoted shipping and delivery dates, Seller shall have the right to delay or refuse shipment on an accepted order when it determines, in its sole discretion that there may be difficulty in obtaining payment or when Buyer has delayed or is delaying payment in previous orders.
Installation
7. (a) Installation drawings and/or instructions will be furnished by the Seller. The Buyer shall, furnish all labor, tools and materials (if not specifically included in the Seller's proposal) to complete the installation, including:
Properly trained operators:Obtaining all required Country, Federal, State, and/ or local permits of any kind required for installation and operation of the product or system, preparing the site, offloading and storing the components, transferring the components to the site, erecting and assembling the machines and other components, furnishing, installing and connecting the facilities required for operation of the cell, such as example(s);
{Electrical service (including breakers, disconnects, motor starters), Plumbing (water and drains), Compressed air and gases, Duct work (air inlets and exhausts, as examples.}
7.(b) Dedicated fixtures and tooling, unless a part of the purchased system, are the responsibility of the Buyer.
7.(c) Any Acceptance Tests must be mutually agreed and quoted by the Seller and Buyer prior to the placement of the purchase order. Any/ all parts, powder, wires, and other material used for the acceptance tests shall be furnished and/ or paid for by the Buyer in advance.
7. (d) Maintenance, protection and preservation of the System (apart from work to be. performed by the Seller under its warranties) after completion is the responsibility of the Buyer. If thereafter Buyer desires Seller, to service the System, Buyer must, request such service in writing with scheduling mutually satisfactory to the parties. Buyer will pay all net travel and living expenses as well as service charge for Seller's personnel at its then, current rate; overtime and weekend hours of service will be based upon current rates.
7. (e) The pollution control facilities are within the warranties granted by, their suppliers. Seller hereby conveys all its respective rights as a purchaser, it makes no separate or independent representations or warranties with respect thereto, nor as to their compliance with or adequacy under the pollution control laws of installation location.
7.(f) It is further recognized by all parties that dry collection of powders, creates a potential fire and explosion hazard. Seller takes no responsibility for any costs or damage either direct or consequential that may arise from fires or explosions that may develop in any dust collection equipment that has been furnished or recommended.
Prices
*8. (a) Unless otherwise specifically and conspicuously stated in written quotation, order acknowledgment, or other document signed by Seller, the price of any products or systems shall be the price for such products or systems in effect at the time of shipment.
**8. (b) Unless otherwise provided on the face of Seller's relevant form or specified otherwise in writing by Seller, quotations and offers by Seller are F.O.B. Seller's manufacturing plant or warehouse and are firm as to the price for thirty (30) days from the date the quotations or offers which are sent by Seller. After the expiration of the initial thirty (30) day offer period, the applicable prices are those in effect at the time of shipment. Any reference to F.O.B. or other delivery terms shall unless otherwise provided herein, have the same meaning as that ascribed by the International Chamber of Commerce (Incoterms) in its current edition.
8. (c) Storage or warehousing charges which may accrue against Seller, after shipment, shall be at Buyer's expense, unless otherwise provided by Seller in writing.8.(d) Errors and omissions in any element of a quotation are subject to correction by Seller.
Terms of Payment:
9. (a) Payment shall be made at the agreed time, place and in the currency indicated by Sellers invoice. The failure by Buyer to pay at the agreed time and place constitutes a waiver of all his rights under this order and all other outstanding orders with Seller unless Seller provides subsequent notice before shipment that other payment terms or financial assurances are required. This determination shall be made at Seller's sole discretion.
9. (b) All products or systems sold by Seller are shipped F.O.B. from its manufacturing plant or designated location and payments are as provided in Seller's proposal or invoice. Shipment shall be by ground transportation unless otherwise specified in Buyer's Purchase Order. When an account becomes past due according to its invoice date, interest will be charged at 1.5% per month (18% per annum or the maximum permitted by law) until paid.
9. (c) If delivery, in installments, is quoted by Seller or required by buyer's order, failure of Buyer to make any payment at the time due as provided for in the sales contract shall give Seller the right to suspend work or delivery on all outstanding orders until such payment is made. In the event that any default by Buyer continues for more than fifteen (15) days after the date due, Seller may at any time thereafter cancel the sale contract and all other pending sales contracts by written notice mailed or, electronically transmitted to Buyer and there upon be entitled to recover the cancellation charge set forth herein below. In addition, Seller shall have the right to repossess without process any previously delivered products or systems which have been paid for in full. In the event the Seller, suspends work on Buyer's order or orders due to Buyer's failure to make payment at the agreed time, any claim by Buyer, against Seller for alleged delay in completion of the work shall be barred.
9. (d) Special payment schedules different from those set forth herein are required for products or systems which are designed for special orders; in such cases, the required payment schedule will be stated in Seller's proposal or quotation
9. (e) Buyer is responsible to timely arrange for the transportation and insurance of the products or systems from Seller's manufacturing plant or warehouse. Buyer is also responsible to, timely procure all necessary import licenses in the country of destination and permits of any sort required for the consummation of the transaction. Failure of Buyer to timely procure all such necessary, documents shall entitle Seller to recover from Buyer all charges Seller necessarily incurs in order to store products or systems pending Buyer's performance under this paragraph.
9.(f) All taxes, fees, costs and other charges connected with shipment, transportation, insurance and importation of the products or systems are the responsibility of Buyer, and, if paid by Seller, such expenses shall be recovered by Seller from Buyer.
Reservation of Title:
10. Seller reserves title in and to the products or systems until all of Seller's claims, arising out of its business relations with Buyer, have finally and financially been settled. If payment is made from another country, title shall pass to Buyer only when payment has been received at Seller's bank; otherwise title shall pass to Buyer upon Buyer's payment to Seller according to the terms Seller specifies in its invoices. As long as the title remains with Seller, Buyer may not sell the products or systems except in the ordinary course of his business provided that any payments Buyer may have or receive from their resale shall be, and hereby are, assigned to Seller as security for Seller's claims resulting from Seller's and Buyer's business relationship. Buyer shall be liable for all judicial and legal expenses Seller might be obliged to incur to protect its rights hereunder.
Risk of Loss:
11. Unless expressly provided for on a basis independent of that set forth above for passage of title, risk of loss or damage to the products or systems shall pass from Seller to Buyer at time of delivery thereof to Buyer or his representative, or to a carrier for shipment to Buyer, as the case may be, F.O.B. at Seller's manufacturing plant or warehouse.
Entire Agreement:
12. The terms and conditions set forth here within constitute the final, complete and exclusive agreement between the parties as to the subject matter thereof. This Agreement may not be amended except by a writing signed by the authorized representatives of both parties.
Cancellation Charges:
13. (a) If Buyer wrongfully fails to accept delivery or wrongfully revokes acceptance of products or systems ordered ("refusal"), Buyer shall incur cancellation charges as invoiced by Seller at Seller's option as follows:
- (1) The full agreed price for the products or systems completed, or
- (2) Seller's full cost, including, overhead, plus twenty-five percent (25%) for all products or systems actually in process or which are scheduled for completion less than thirty (30) days after the date Seller receives notice of Buyer's refusal or
- (3) Seller's full cost-plus twenty-five percent (25%), for any raw materials or supplies purchased or contracted for by Seller for Buyer's order as of the date Seller receives notice of Buyer's refusal.
13. (b) Additionally, in the event Buyer causes unreasonable delays or otherwise unreasonably hampers or interrupts Seller's manufacture, shipment or installation of products or systems, Seller may terminate the sales contract and Buyer shall be liable to pay Seller the applicable cancellation charges set forth above.
13. (c) Any products or systems paid for by Buyer under this paragraph will become Buyer's property and shall be removed at its expense within thirty (30) days after Seller received payment of the cancellation charges. If not removed within such time the products or systems may be shipped to Buyer at Buyer's expense. If any invoice of Seller for cancellation charges is paid within thirty (30) days after its date, the products or systems in question may be disposed of by Seller for Seller's account.
Governing Law:
14. The validity construction and interpretation of all documents relating to this sale and duties of the parties hereto, shall be governed by the laws of Orange County, State of California, United States of America (USA). This sales transaction shall be governed by The Convention of Contracts for the International Sale of Goods, except for Articles 8, 19, and 50, which are expressly repudiated. Instead, UCC Provisions 2-202, 2-207(1), and 2-717 respectively shall govern.
Arbitration:
15. (a) Any controversy arising, out of the interpretation and/or performance of this contract shall be submitted to arbitration in Orange County, State of California, United States of America (USA) or any other place mutually agreed upon between the parties, and shall be settled according to the Rules of Arbitration of the American Arbitration Association by one or more arbitrators appointed in accordance with the above-mentioned Rules.
15.(b) Notwithstanding the foregoing, Seller reserves the right to bring suit against Buyer with respect to any matter arising out of the interpretation and/or performance of this contract in the courts of Buyer's jurisdiction or where Buyer has assets.
Miscellaneous:
16. (a) All provisions of this contract are essentially integral and correlated; therefore, failure on the part of Buyer to fulfill any of his obligations under this contract shall constitute a default of the contract and Buyer shall be liable as a defaulter.
16.(b) Failure on the part of Seller to enforce any of the rights derived from this contract shall never be construed as a waiver of any of its rights.
16. (c) The declaration of the nullity of one or more of the clauses of this contract by any competent authority shall not affect the validity of the other clauses, which for this purpose are considered severable.
16. (d) The acceptance by Seller of an order from Buyer for products or systems bearing any registered trademark does not grant to Buyer the right to, use such marks in advertising its products or systems. All advertising materials incorporating such marks in any manner must be approved by Seller prior to its release to the public.
16. (e) The Seller shall not be liable by way of indemnity or otherwise to the Buyer for any claims for infringement or otherwise of Letters Patent, Registered Designs or otherwise monopoly right covering methods, processes and articles produced thereby whether such be known to the Seller or not. In the event of the Seller manufacturing, goods to specifications or designs furnished by the Buyer of effecting any alteration or modification to the Seller's own products or systems or; to articles or materials provided by the customer or in the event of the Buyer effecting alteration or modification to articles or materials manufactured or provided by the Seller, the Buyer shall indemnify the Seller from all actions, injunctions, claims or other demands of whatsoever nature arising from any infringement or breach of any Letters Patent, Registered Designs or other monopoly rights.
*Applicable only to sales concluded by HAI Advanced Material Specialists, Inc. in the United States of America for destination in the United States of America.
**Applicable only to sales concluded by HAI Advanced Material Specialists, Inc. in the United States of America for destination outside the United States of America.