Terms and Conditions: Sale (TCS 11-01-05)
These are the TERMS AND CONDITIONS OF SALE that apply to all business by Rochester Electronics, LLC and its subsidiaries and divisions ("SELLER") and the Purchaser and supersedes all prior correspondence, negotiations, discussions, representations and offers.
Any Order is intended as a final expression and complete and exclusive statement of the terms of the agreement between Seller and Purchaser and may be amended only by a writing signed by each of them. ACCEPTANCE BY PURCHASER OF THE OFFER CONTAINED IN THIS ORDER IS EXPRESSLY LIMITED TO THE EXACT TERMS AND CONDITIONS CONTAINED HEREIN. ANY TERMS AND CONDITIONS SET FORTH IN ANY PURCHASE ORDER OR OTHER DOCUMENT PROVIDED BY PURCHASER TO SELLER WHICH DIFFER FROM, CONFLICT WITH OR ARE NOT INCLUDED IN THESE TERMS AND CONDITIONS SHALL NOT BECOME APART OF ANY AGREEMENT BETWEEN PURCHASER AND SELLER UNLESS SUCH TERMS AND CONDITIONS ARE SPECIFICALLY ACCEPTED BY SELLER IN WRITING. ACCEPTANCE OF PRODUCT CONSTITUTES ASSENT TO THE TERMS AND CONDITIONS OF SALE STATED HEREIN. Orders shall identify the Products, unit quantities, part numbers, descriptions, applicable prices and requested delivery dates. All orders are subject to acceptance by Seller. No orders for standard Products ("Standard Products") may be cancelled or rescheduled without Seller's consent, which consent may be given by Seller in its sole discretion. Seller reserves the right to allocate sales of Products among its customers in its sole discretion. Notwithstanding any provision of these Terms and Conditions to the contrary, orders for manufacturing, special, custom, value-added and other non-standard and Products otherwise identified by Seller as "NCNR" or "Non-Cancelable and Non-Returnable" ("Non-Standard Products") shall be non-cancelable and non-returnable.
Seller may change at any time without notice all prices published by Seller or quoted by its representatives. Written quotations expire automatically 30 days from the date issued and are subject to change or termination by notice from Seller during that period. All prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other terms and conditions which are not part of the original price quotation. Prices are exclusive of all excise, sales, use and other taxes imposed by any federal, state, municipal or other government authority, all of which taxes shall be paid by Purchaser. Purchaser is responsible for obtaining and providing to Seller any certificate of exemption or similar document required to exempt any sale from sales, use or similar tax liability. All prices shall be as specified by Seller, or if no price has been specified, shall be Seller's price in effect at the time of delivery.
Terms of Payment
Unless otherwise expressly stated in writing, terms are net cash 30 days from the date of invoice. Seller reserves the right at any time to require full or partial payment in advance, or to revoke any credit previously extended, if, in its sole judgment, Purchaser's financial condition does not warrant proceeding on the terms specified. Overdue payments shall be subject to finance charges computed at a periodic rate (to the extent permitted by law) of 1 1/2 % per month (18% per year). Amounts owed by Purchaser with respect to which there is no dispute shall be paid without set-off for any amounts which Purchaser may claim are owed by Seller and regardless of any other controversies which may exist.
Delivery and Title
Unless otherwise specified, all sales are F.O.B. Seller's premises in Newburyport, Massachusetts and the time of delivery shall be the time when the product is ready for pickup at that location by Purchaser or by a carrier for delivery to Purchaser. Subject to Seller’s right of stoppage in transit, delivery of the Products to the carrier shall constitute delivery to Purchaser and title and risk of loss shall thereupon pass to Purchaser. Purchaser is responsible for Products lost or damaged during shipping. Seller reserves the right to make delivery in installments. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Purchaser acknowledges that delivery dates provided by Seller are estimates only and that Seller is not liable for failure to deliver on such dates. Delay in delivery of any installment shall not relieve Purchaser of its obligations to accept remaining deliveries. Without in any way limiting the generality of paragraph 6, Seller shall not be liable for any loss or damage resulting from any delay or failure to deliver which is due to any cause beyond its control, including, without limitation, acts of nature, unavailability of supplies or sources or energy, riots, wars, fires, floods, epidemics, lockouts, strikes, and slowdowns, delays in delivery by its suppliers, or acts or omissions of Purchaser. If, as a result of any such cause, any scheduled delivery is delayed, Seller may, at its option, by written notice to Purchaser, cancel that and all future deliveries without further liability or obligation of any kind.
Unless specific instructions to the contrary are supplied by Purchaser, methods and routes of shipment will be selected by Seller, but Seller will not assume any liability in connection with shipment nor constitute any carrier as its agent. All shipments will be made at Purchaser's risk, and Purchaser shall be responsible for making all claims with carriers, insurers, warehousemen and others for misdelivery, nondelivery, loss, damage or delay.
Cancellations, Returns and Claims
Purchaser may not cancel this Order except upon the written consent of Seller and upon terms that will fully indemnify Seller against loss.
Products shall not be returned to Seller without its prior written authorization. Inspection and acceptance of the Products shall be Purchaser's responsibility. Buyer is deemed to have accepted the Products unless written notice of rejection is received by Seller within ten (10) days after delivery of the Products. Purchaser waives any right to revoke acceptance thereafter. Purchaser shall report any discrepancy in shipment quantity or damage within ten (10) days after delivery. No return of Products shall be accepted by Seller without a Return Material Authorization ("RMA") Number, which may be issued by Seller in its sole discretion. Returned Products must be in original manufacturer's shipping cartons complete with all packing materials. All Products for return shall be returned freight prepaid in the manner specified in the RMA. If returned Products are claimed to be defective, a complete description of the nature of the defect must be included with the returned Products. Products not eligible for return shall be returned to Buyer, freight collect.
Seller's sole responsibility with respect to such claims shall be, at its option, to credit or replace any product or component, which Seller determines to be defective. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES DUE TO ANY CAUSE WHATSOEVER EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO SUIT OR ACTION SHALL BE BROUGHT AGAINST SELLER FOR MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS OCCURRED. THE FOREGOING CONSTITUTES SELLER'S SOLE LIABILITY AND PURCHASER'S SOLE REMEDY WITH RESPECT TO PRODUCTS SOLD BY SELLER. EXCEPT AS THUS PROVIDED, SELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Seller shall not be liable for failure to fulfill its obligations herein or for delays in delivery due to causes beyond its reasonable control, including, but not limited to, acts of God, natural disasters, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, riots, war, acts of terrorism, delays in transportation or inability to obtain labor or materials through its regular sources. Seller's time for performance of any such obligation shall be extended for the time period of such delay or Seller may, at its option, cancel any order or remaining part thereof without liability by giving notice of such cancellation to Purchaser.
All products are subject to Seller's standard tolerances for specifications, except where specific tolerances are agreed to in writing at the time of order. Seller reserves the right to make substitutions and modifications in the specifications of any products provided that such substitutions or modifications do not materially affect the performance of the products or the purposes for which they can be used, or modify any custom specifications agreed to in writing at the time of order.
Seller assumes no obligation or liability of any kind with respect to infringements or alleged infringements of United States or foreign patents, copyrights, trademarks or other proprietary rights arising out of a purchaser's purchase, use, possession, sale or delivery of any products sold hereunder. Purchaser shall indemnify and hold Seller harmless from any and all claims, liabilities, damages or expenses resulting from infringements or alleged infringements of United States or foreign patents, copyrights, trademarks or other proprietary rights arising from compliance by Seller with any designs or specifications provided by Purchaser. No sale of any product shall be construed as granting Purchaser any license or other right in or to any patent, copyright, trademark or other proprietary right applicable to the product.
Use of Products in Life Support, Nuclear and Certain Other Applications
Products sold by Seller are not designed, intended or authorized for use in life support, life sustaining, nuclear, or other applications in which the failure of such Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. If Purchaser uses or sells the Products for use in any such applications: (1) Buyer acknowledges that such use or sale is at Purchaser’s sole risk; (2) Purchaser agrees that Seller and the manufacturer of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (3) Purchaser agrees to indemnify, defend and hold Seller and the manufacturer of the Products harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.
The sale, resale or other disposition of Products and any related technology or documentation are subject to the export control laws, regulations and orders of the United States and may be subject to the export and/or import control laws and regulations of other countries. Purchaser agrees to comply with all such laws, regulations and orders and acknowledges that it shall not directly or indirectly export any Products to any country to which such export or transmission is restricted or prohibited. Purchaser acknowledges its responsibility to obtain any license to export, re-export or import as may be required.
This Order shall be governed by the laws of the Commonwealth of Massachusetts. The headings herein are for purposes of reference only and shall not limit or otherwise affect the meaning hereof. In case any provision herein shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. A waiver by Seller of any of the terms and conditions of this Order shall not be deemed to be a continuing waiver but shall apply solely to the instance of the waiver.
This Order is subject to approval by the Seller at its home office in Newburyport, Massachusetts, U.S.A.
The Purchaser shall not delegate any duties nor assign any rights or claims under this Order without Seller's prior written consent, and any such attempt at delegation or assignment shall be void.
Compliance with Laws
The Purchaser shall carry out the transactions contemplated by this sale and shall otherwise deal with the products sold in conformity with all applicable laws, rules, and regulations of all governmental authorities, including, without limitation, the Export Administration Act, and shall obtain all permits and licenses required in connection with the purchase, installation, sale, shipment or use of any of the products.