ADALET/SCOTT FETZER COMPANY
1. Acceptance. Adalet/Scott Fetzer Company d/b/a Meriam Process Technologies (“Seller”) shall not be bound by this invoice until buyer (“Buyer”) executes and returns to Seller an acknowledgement of the invoice. Buyer shall be bound by this invoice and its terms and conditions when it executes and returns the acknowledgement copy, when it otherwise indicates its acceptance of this invoice, or when Seller delivers any of the goods ordered herein. This invoice expressly rejects all prior and subsequent terms and conditions of Buyer, whether stated in Buyer’s own purchase order or otherwise, and expressly limits acceptance to the terms and conditions stated herein; any additional or different terms or modifications proposed by Buyer are rejected unless expressly assented to in writing by Seller.
2. Prices and Transportation. Seller’s then-current published prices and terms of payment, including discounts and transportation terms, shall apply to all orders.
3. Taxes. Liability for all present or future federal, state, municipal or other sales, property, use or excise taxes, license fees or other fees imposed by or payable to any governmental authority, including any department, agency or subdivision thereof, upon the production, sale, shipment and/or use of the equipment, material or services covered hereby shall be assumed and paid for by Buyer and Buyer shall indemnify Seller against any such liability. Applicable sales and/or use taxes will be billed by Seller unless a suitable exemption certificate is furnished by Buyer at time of placing the order.
4. Delivery. Delivery of the equipment and material shall be made F.O.B. shipping point, and title and risk of loss of the equipment and material shall pass to Buyer at F.O.B. shipping point, unless otherwise expressly indicated in a writing signed by Seller. Unless Buyer specifies in writing the desired method of transportation (air express, motor freight, etc.) within a reasonable period of time before the date scheduled for shipment, Seller will use its judgment in selecting the carrier and route. Delivery schedules are estimated, and Seller assumes no responsibility for delays. If Buyer delays delivery of any items, Seller may invoice Buyer for said items, and hold them at Buyer’s risk and expense pending instructions from Buyer.
5. Terms of Payment. Payment terms are NET thirty (30) days from the date of invoice. Past due accounts are subject to a finance charge of 1-1/2% of the outstanding balance each month or part thereof, or the highest rate permitted by law, until paid.6. Financial Responsibility of Buyer. If at any time before shipment the financial responsibility of Buyer becomes impaired, or unsatisfactory to Seller, cash payment or satisfactory security may be required by Seller before shipment. Buyer will cooperate with Seller in complying with any applicable conditional sale or security law and will furnish Seller such other assurances, including financing statements, as Seller may reasonably request. If Buyer shall fail to make payments in accordance with the terms herein specified, Seller, in addition to its other rights and remedies, may at its option terminate shipment. In the event of bankruptcy or insolvency of Buyer, or in the event any proceeding is brought by or against Buyer under any bankruptcy or insolvency laws, Seller shall be entitled to cancel any order then outstanding and shall receive reasonable cancellation charges.
7. Cancellations, Returns and Changes. Orders may not be cancelled by Buyer without the prior written consent of Seller. Equipment and goods may not be returned by Buyer without the prior written consent of Seller. Cancellation and restocking charges will be assessed to Buyer where applicable. Buyer may, at any time prior to shipment, request a change in (a) the specifications, including drawings and data; (b) method of packing and shipment: (c) date for performance. If implementing such changes would result in increased costs or time to complete the performance of the contract, Seller shall submit a proposal identifying the price and schedule for which the change can be implemented. Buyer may accept said proposal at any time within the acceptance period specified therein, and the contract shall be modified accordingly.
8. Warranty. Seller expressly warrants that equipment, goods and material manufactured by it will be free from defects in material and workmanship at the date of shipment. NO OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SHALL EXIST IN CONNECTION WITH THE SALE OR USE OF SUCH EQUIPMENT, GOODS or MATERIAL. All claims under this warranty must be made in writing and delivered to Seller prior to the expiration of one (1) year from the date of shipment from Seller or be barred. Upon receipt of a timely claim, Seller shall inspect the item(s) claimed to be defective, and Seller shall, at its option, modify, repair or replace, free of charge, any item(s) which Seller determines to have been defective as the time of shipment from Seller, excluding normal wear and tear. Inspection may be performed at Seller’s plant, and in such event, freight for returning items to the plant for inspection shall be paid by Buyer. Seller shall have no responsibility if such item has been improperly stored, installed, operated, maintained, modified and/or repaired by an entity other than Seller. The foregoing shall be Seller’s sole and exclusive liability and Buyer’s sole and exclusive remedy for any breach of warranty or for any other claim based on any defect in, or non-performance of, the equipment, goods and material, whether based on breach of contract or in tort, including negligence or strict liability.
9. Disclaimer of Damages. Notwithstanding any other provision of the contract, in no event shall Seller (including its affiliates) be liable, whether arising under contract, tort (including negligence), strict liability or otherwise, for loss of anticipated profits, claims of Buyer’s customers, cost of money, lost use of capital or revenue, cost of substitute products, or for any special, incidental, indirect, speculative or consequential losses of any nature in connection with any goods, equipment or material purchased by Buyer hereunder.
10. Assignment. No rights or obligations arising under any contract between Seller and Buyer may be assigned or transferred by Buyer without the prior written consent of Seller.
11. Tender. In the event of failure or refusal of Buyer to accept delivery, no physical tender of the goods by Seller shall be necessary, but written notice of Seller’s readiness and willingness so deliver any quantity of the goods at any time specified shall be equivalent to physical tender thereof.
12. Proprietary Data. Unless otherwise specifically agreed in writing, neither Buyer nor any representative of Buyer, nor any other person, shall be entitled to, or have control over, any engineering or production prints, drawings or technical data which Seller, in its sole discretion, may consider to be, in whole or in part, proprietary. Any such prints, drawings, data and other information transmitted to Buyer in connection with any order are the property of Seller and are disclosed in confidence on the condition that they are not to be reproduced, copied or used for any purpose detrimental to the interest of Seller.
13. Governing Law. The provisions of these terms and conditions and any other agreement between Seller and Buyer shall be interpreted and construed in accordance with the laws of the State of Ohio, and the federal and state courts in Ohio shall have exclusive jurisdiction and venue over any disputes arising herefrom, and Buyer consents to the same.
14. Waiver. The failure or delay by Seller in exercising any right, power or privilege hereunder shall not operate as a waiver thereof, preclude any other or further exercise thereof, nor preclude the exercise of any right, power or privilege hereunder.
15. Entire Agreement. These terms and conditions, and any invoice provided to Buyer by Seller, constitute the entire understanding between the parties with respect to the subject matter herein and may only be modified in a writing signed by a representative of each party.
TERMS AND CONDITIONS OF SALE
EXPORT SALE ADDENDUM
1. Additional Terms of Payment. Payment is to be made in U.S. dollars by either advance payment via wire transfer or establishment of an irrevocable Letter of Credit confirmed by a major U.S. bank payable at sight in favor of Seller. The Letter of Credit is subject to the reasonable approval of Seller and the total contract value shall be provided at the time of order placement. All banking charges shall be borne by Buyer.
2. Governmental Limitations. Seller’s performance under this contract is subject in part to applicable U.S. government laws, regulations and rules, and those of the country in which the equipment, material and/or services to be sold will be installed, used, or performed. Should any governmental authority prohibit the performance of this contract, in whole or in part, or if the exportation or importation of the equipment and material which are the subject of this contract be precluded because of the inability, within a reasonable time, to obtain an export or import license therefore, as appropriate, then Seller’s obligations under this contract shall be terminated, at Seller’s option, and Seller shall be entitled to reasonable termination charges. It shall be Buyer’s responsibility to provide any required applications, documentation, or other similar licenses or action which may be necessary to export from the U.S. or import into Buyer’s country. These documents may include U.S. Government Form ITA629, International Import Certificates, Country End User Certificates and Import Licenses.
