STANDARD TERMS AND CONDITIONS OF
(SV Microwave, Inc., hereinafter referred to as “Seller”)
The terms and conditions of sales contained herein apply to all quotations made and purchase orders entered into by the Seller with the Buyer. The present terms and conditions may in some instances conflict with the terms affixed to the form or order blank and/or specified by the Buyer. Therefore, acceptance of the buyer’s order is made only on the express understanding and condition that insofar as these standard terms and conditions conflict with any terms and conditions of the Buyer’s order, these standard terms and conditions shall govern. Any changes in the standard terms and conditions of sales contained herein must specifically be agreed to in writing by an authorized officer of the Seller before becoming binding on either the Seller or the buyer. These terms and conditions of sale shall be applicable whether or not they are attached to or enclosed with the products sold or to be sold.
Quoted prices are open for acceptance by the Buyer within thirty (30) days from the date of quotation. Unless otherwise stated, prices are firm but subject to changes in foreign exchange rates precious metal prices, purchase or sales tax, custom tariff and other direct taxes, between date of quotation and date of shipment.
All orders are subject to final acceptance by the Seller. The Seller reserves the right to accept or to reject any order from any Buyer, in whole or in part. The Seller reserves the right (without prejudice to any other remedy) to cancel any uncompleted order or to suspend delivery in the event of any of the Buyer’s obligations to the Seller not being complied with or in the event of any act or omission of Buyer which delays Seller’s performance. On the cancellation of any order, the Buyer undertakes to indemnify the Seller against all losses, including cost of all labor, materials, overheads, damages, charges, expenses and attorney’s fees and costs arising out of the order and its cancellation. Blanket orders will be accepted for annual quantity pricing, provided they are firm orders for a stated quantity and total delivery is accepted by the Buyer within one (1) year after date of blanket order entry. Unless otherwise stated, prices are firm but subject to changes in foreign exchange rates, precious metal prices, purchase or sales tax, customs tariff and other direct taxes between date of order, acceptance and date of shipment. Orders are subject to a variation of ten percent (10%) over or under the quantity or weight specified and performance will be considered complete on that basis. If price is stated in terms of unit weight, the total contract price will be adjusted to conform to the quantity or weight delivered. The Seller assumes no further liability for variations.
4. TITLE AND DELIVERY
The goods shall be delivered F.O.B. Seller’s plant or designated warehouse and title thereto and liability for loss of damage in transit or thereafter shall pass to Buyer upon Seller’s delivery of the goods in good condition to a common carrier for shipment to Buyer or upon Seller’s delivery of the goods directly to Buyer at Seller’s plant or designated warehouse if no common carrier is required. Buyer shall pay all shipping costs. Seller retains a security interest in the goods until the entire payment due and all other monies payable hereunder are paid in full. Buyer agrees that a copy of this Agreement is sufficient and may be recorded as a financing statement. A financing statement may be filed without Buyer’s signature on the basis of this Agreement.
Unless instructions from Buyer specify the method of shipment to be used, the Seller will exercise its own discretion. Times quoted for shipments will date from receipt by Seller of order accompanied by all necessary information enabling work to commence together with any import license and/or permits, which may be necessary, or letters of credit or other instruments of payment which may be requested by Seller. Shipping dates are estimated only and are not guaranteed. The Seller shall not be liable for failure to meet such dates. In no event will Seller be liable for any reprocurement costs. Seller will in no event be liable for delay or non-delivery due to causes beyond its reasonable control, including, but no limited to, acts of God, acts of civil or military authority priorities, fires, strikes, lockouts, slowdowns, factory or labor conditions, errors in manufacture and inability to obtain necessary labor, materials or manufacturing facilities. In the event of such delay, the date of delivery shall, at the request of the Seller, be deferred for a period equal to the time lost by reason of the delay.
All federal, state, county, local or other taxes, levies or duties (of whatever nature) applicable to the goods sold, shall be paid by the Buyer in lieu thereof, the Buyer shall provide the Seller with a tax exemption certificate acceptable to the taxing authorities.
All orders are subject to credit approval before acceptance. All invoices are due and payable in United States currency without discounts thirty (30) from date of invoice, unless other terms are set by Seller in writing. If, in the Seller’s judgment, the Buyer’s financial condition does not at any time justify the terms of payment specified, the Seller may cancel any unfilled orders unless the Buyer shall at the Seller’s option:
(a) Immediately pay for any goods delivered or manufactured to Buyer’s specifications; or
(b) pay in advance for all goods ordered but not delivered; or
(c) make any other credit or payment arrangements acceptable to Seller.
Each shipment shall be considered a separate and independent transaction, and payment therefor shall be made accordingly. In the event of any default by the Buyer, Seller may decline to make further shipments without in any way affecting its rights under such order. If, despite any default by the Buyer, the Seller elects to continue to make shipments, its action shall not constitute a waiver of any default by the Buyer or in any way offset the Seller’s legal remedies for any such default. In the event of any default by the Buyer, Seller shall be entitled to receive from the Buyer all expenses arising out of such default, including attorney’s fees and costs through appeal.
The Buyer shall indemnify and hold the Seller harmless against any expense or loss resulting from any claims for actual or alleged infringement of patents or trademarks arising from compliance with Buyer’s designs, specifications or instructions. The sale of goods by the Seller does not convey any license, by implication, estoppel, or otherwise, under patent claims covering combinations of said goods with other devices or elements. Except as otherwise provided in the preceding paragraph, the Seller shall defend any suit or proceeding brought against the Buyer so far as based on a claim that any goods, or any part thereof, furnished under this contract constitutes an infringement of a duly issued and valid United States patent, at the date of this contract, provided:
(a) THAT said claim shall not derive from the use of such goods in a manner or for a purpose not specified by the Seller; and
(b) THAT said claim shall not be in respect of the use or sale of any equipment not supplied by the Seller but which includes or is used in combination with any goods so supplied, and
(c) THAT the Buyer has made and makes no admission in respect of such alleged infringement and gives the Seller notice in writing within five (5) days of receipt of notice of any claim being made or action threatened or brought against the Buyer and that the Buyer furnished Seller with all papers received in connection therewith and gives authority, information and assistance (at the Seller’s expense) necessary for the defense of any litigation that may ensue and all negotiations for a settlement of the claim; and
(d) THAT the Seller has sole control of the defense and all related settlement negotiations of any alleged infringement.
In case of said goods, or any part thereof, is in such suit held to constitute infringement and the use of said goods or parts is enjoined, the Seller shall, at its own expense, either procure for the Buyer the right to continue using said goods or part, or replace same with non-infringing goods, or modify it so it becomes non-infringing, or remove said goods and refund the purchase price and the transportation costs thereof. The goods shall be either returned or disposed of in accordance with Seller’s instructions. The foregoing states the entire liability of the Seller for patent infringement by the said goods or any part thereof.
(1) The Seller warrants that the goods will be free from defects in material and will comply with Seller’s normal standard of workmanship.
(2) The Seller shall incur no liability under this warranty unless:
(2.1) The Buyer promptly notifies the Seller in writing upon discovery of any such latent or patent defect and in any event, not later than twelve (12) months from the date of shipment of the goods to the Buyer;
(2.2) The Buyer returns the allegedly defective goods within fourteen (14) days from discovery of any such latent or patent defect, and in any event, not later than twelve (12) months from the date of shipment of the goods to the Buyer, transportation charges prepaid, in the form and packaging in which originally shipped; and
(2.3) After return of the goods, the Seller’s tests disclose that the goods do not meet Buyer’s specifications by reason alone of defects of material and/or deviation from Seller’s normal standard of workmanship.
(3) The liability of the Seller shall in any event be limited to either repair or replacement of the
defective goods sold hereunder at the Seller’s expense, or reimbursement to the Buyer of the price paid to the Seller for the defective goods sold hereunder, the choice of remedy at the Seller’s option.
(4) In no event shall the Seller be responsible for defects due to physical damages suffered to the goods as a result of improper handling and/or storage during or after shipment, misuse, neglect, improper installation or operation, repair, alterations, accident, or for any other cause not attributable to defects of material or of workmanship on the part of the Seller.
(5) In no event shall the damages for which the Seller may be liable to the Buyer exceed the sale price to the Buyer for the defective goods sold hereunder. Seller is not liable for special, incidental or consequential damages, including, but not limited to cost of removal and reinstallation of goods, loss of good will, loss of profits, storage, or loss of use, however caused, whether by negligence of Seller or otherwise.
(6) Seller’s warranties as hereinabove set forth shall not be enlarged, diminished or affected by, and no obligation or liability shall arise or grow out of Sellers rendering of technical advice or service in connection with Buyer’s order of the goods furnished hereunder.
(7) THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTY, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND OF ALL OTHER OBLIGATIONS ASSUMED BY ANY EMPLOYEE, AGENT OR REPRESENTATIVE.
9. NO RETURNS
No products are to be returned without written authorization from the Seller and then only in accordance with the Seller’s terms and instructions.
The Buyer shall not assign its order or any interest therein or any rights hereunder without the prior written consent of Seller.
THE BUYER HEREBY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, THE BUYER AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES WHICH SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
The rights and obligations arising under this agreement shall be governed by the laws of the State of Florida. Venue in any action arising hereunder shall lie in Palm Beach County, Florida.