Ferrisphere, Inc. requires the same standard Terms and Conditions of Sale, currently used in our industry and by many others. These Terms and Conditions are as follows:
1. TRANSPORTATION: The Buyer shall be responsible for all related shipping expenses, which include but are not limited to the following: shipping costs, insurance, customs fees, import duties, etc., whenever and wherever applicable. Risk of loss or damage shall pass from the Seller to the Buyer upon Delivery of the Product(s) to the transportation company at the FOB point. Any defects, nonconformity or loss of the Product(s) shall remain the responsibility of the Buyer until the Product(s) are returned, at the expense of the Buyer, to the Seller. The Buyer, at their own expense, shall fully insure the Product(s) against all loss and/or damage until Seller has been paid in full.
2. SHIPMENT: Seller will do their best to attempt to meet shipment schedules, however, any shipment quotation forecast on an order acknowledgement is only an estimate of the time required to make shipment. The Seller will not assume liability, consequential or otherwise, due to any delay or failure to deliver all or any part of any order for any reason, including it’s active or passive negligence. The Seller reserves the right to allocate inventories and current production in any way Seller deems desirable.
3. INSPECTION AND ACCEPTANCE: The Buyer will have the right to inspect all goods upon their delivery. Failure of the Buyer to inspect the goods and give a written notice to the Seller of any alleged defect or nonconformity within thirty (30) days after delivery shall constitute an irrevocable acceptance by the Buyer of the goods delivered to them. Notwithstanding the foregoing, use of any such goods by the Buyer, their agents, employees and/or licensees, for any purpose after delivery thereof, shall constitute acceptance of the goods by the Buyer.
4. RETURNS: Product(s) MAY NOT be returned to the Seller without FIRST obtaining the Seller’s consent. The request to return for credit must be filed with the Seller and shall include a purchase order number, shipment date and any and all identifying numbers, such as an Invoice Number, Invoice Date, etc. Each request for return of Product(s) for credit, must state the type and quantity of goods, part numbers and reason(s) for return. If return authorization is granted, Product(s) shall be returned in clean, well-packaged condition. No credit allowances on defectives will be made and no replacement for defectives will be shipped in any event, unless the alleged defective, are, among other things, established to Seller’s satisfaction after suitable testing and inspection by the Seller.
5. TERMINATIONS: Any order of a standard Product with a published price accepted by the Seller and terminated by the Buyer, prior to shipment, shall be subject to termination charges of NOT less than ten percent (10%) of the order value to cover costs of processing an order handling. Termination within thirty (30) days before shipment shall be subject to a written acceptance by the Seller and termination charges of not less than twenty-five percent (25%) of the order value, thereafter NO such order may be terminated acceptable by mutual agreement, in writing. No order for nonstandard Product(s) without published price lists, may be terminated by the Buyer, except by mutual agreement in writing. Terminations by mutual agreement are subject to the following conditions: a) Buyer will pay, at applicable contract prices, for all Product(s) that are completely manufactured and allocatable to Buyer at the time of the Seller’s receipt of notice of termination. b) Buyer will pay all costs, direct and indirect, which have been incurred by the Seller, with regard to Product(s) that have been completely manufactured at the time of the Seller’s receipt of notice of termination, plus a pro-rata portion of the normal profit of the contract. c) Buyer will pay termination charge on all other Product(s) affected by the termination. Seller’s normal accounting practices shall be used to determine costs and other charges. To reduce termination charges, Seller will divert completed parts, material and/or work in progress from terminated contracts to other customers whenever, at the Seller’s discretion, it’s practical to do so. In the event of a termination, the Buyer will have no rights in or to partially completed goods.
6. LIMITED WARRANTY – LIMITATION OF REMEDIES: Except as otherwise specified herein, Seller warrants Product(s): (1) To be free from defects in material and workmanship for a period of time and such conditions as specified in Seller’s warranty for the individual Product or for twelve (12) months from shipment is a warrant for an individual Product is not specified and (2) To perform in the manner and under the conditions as specified in Seller’s warranty for the individual Product or for twelve (12) months from shipment if a warranty of an individual Product is not specified. (b) This warranty is the only warranty made by the Seller with respect to the Product(s) and no representative or person is authorized to bind the Seller for any obligations or liabilities beyond the warranty in connection with the sale of the Seller’s goods. This warranty is made to the original purchaser only at the original location and is not transferable and may be modified or amended by a written instrument signed by a duly authorized officer of the Seller. Goods or parts which are replaced or repaired under warranty are warranted only for the remaining unexpired portion of the original warranty period applicable to the specific Product. (c) These remedies are available only if the Seller is notified, in writing, by the Buyer promptly upon discovery of the defect, and in any event within the warranty period for the individual Product. Seller’s examination of such Goods discloses to Seller’s satisfaction that such defects actually exist and the Goods have not been: (i) repaired, worked upon or altered by person not authorized by the Seller, so as, in the Seller’s sole judgement, to injure the stability, reliability or proper operation of such Goods or (ii) subject to misuse, negligence or accident, or (iii) connected, installed, used or adjusted otherwise than that is in accordance with the instructions furnished by the Seller. (d) All Product(s) which the Buyer considers defective shall be returned to the Seller’s office as designated on the face hereof transportation cost prepaid and borne by the Buyer, unless otherwise provided on the face hereof. The risk of loss of the Goods shipped or delivered to the Seller’s plant for repair or replacement will be borne by the Buyer. (e) If it’s found that any Product has been returned without cause and is still serviceable, the Buyer will be notified and the Product will be returned to the Buyer at the Buyer’s expense. In addition, a charge for testing and examination may, at the Seller’s sole discretion, be made on the Product so returned. (f) The foregoing warranty is exclusive and in lieu of all other warranties (except for specific written Product performance guarantees) whether written, oral or implied, including warranty of merchantability or fitness for a Seller’s sole liability or contract or warranty or otherwise for the Product.
7. SELLER’S RIGHTS TO SUBCONTRACT: The Seller may subcontract any portion of the work, on any item, subject to this Agreement, but Seller’s obligations and rights hereunder shall not thereby be limited or affected.
8. PROPRIETARY RIGHTS: The sale of the Product(s) hereunder to Buyer shall in no way be deemed to confer upon Buyer any right, interest or license, in any patents, patent applications or design copyrights the Seller may have covering the Product(s). The Seller retains, for itself, all proprietary rights in and to all designs, engineering details and other data and materials pertaining to any Product(s) supplied by Seller and to all discoveries, inventions, patents and other proprietary rights arising out of the work done by the Seller in connection with the Product(s), or with any and all Product(s) developed by the Seller, as a result thereof, including the sole right to manufacture any and all such Product(s). The Buyer warrants that it will not divulge, disclose or in any way distribute or make use of such information and that it will not manufacture or engage to have manufactured such Product(s).
9. LIMITATION OF LIABILITY: (a) The Seller will not be liable for loss, damages or penalty resulting from delay in delivery of Product(s) when such delay is due to causes beyond the reasonable control of the Seller, including, without limitation, supplier delay, force majeure, Act of God, labor unrest, fire, explosion or earthquake. In any such event, the delivery date will be deemed extended for a period equal to the delay. (b) The Seller’s liability under, for breach of, or arising out of the agreement, and/or sale will be limited to repair or replacement of any defective Product(s) or a refund of the purchase price of the Product(s) at the the Seller’s sole option as set for in paragraph (6) above. In no event will the Seller be liable for the costs of procurement of substituted Products by the Buyer, not will the Seller be liable for any special, consequential, incidental or other damages including without limitation, loss of profit, whether or not the Seller has been advised of the possibility of such loss, however caused, whether for breach, or repudiation of contract, breach of warranty, negligence or otherwise. This exclusion included any liability that may arise out of third party claims against the Buyer. The essential purpose of this provision is to limit the potential liability of the Seller arising out of this Agreement and/or sale.
10. SUBSTITUTIONS AND MODIFICATIONS: The Seller will have the right to make substitutions and modifications of the specifications of Product(s) sold by the Seller, provided that such substitutions and modifications will not materially affect overall Product performance.
11. ATTORNEY’S FEES AND COSTS: Reasonable attorney’s fees and costs will be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of this Agreement.