1. ACCEPTANCE; GOVERNING PROVISIONS: All sales of products (“Products”) pursuant to any purchase order, request or other correspondence (each, an “Order”, and collectively “Orders”) from buyer (the “Buyer”) are made only on these Standard Terms and Conditions of Sale (these “Terms and Conditions”) of Hargraves Technology Corporation (“Seller”). These Terms and Conditions supersede any and all other terms and conditions or other agreement relating to the Products on any previous purchase orders, requests, or other written or oral correspondence or communication between Buyer and Seller. These Terms and Conditions may not be modified, supplemented, amended or rejected by Buyer without the express written agreement of Seller, and Seller hereby rejects any modification, supplementation, amendment or rejection made to these Terms and Conditions without its express written agreement. Buyer’s taking possession of the Products shall be conclusive evidence that Buyer has agreed to these Terms and Conditions. All subsequent action shall be pursuant to these Terms and Conditions, unless agreed to in writing by Seller.
2. PRICE: Seller may change it prices for Products at any time without notice, whether or not a quotation has been given. The Price or Prices shown on Seller’s price lists and any other literature issued by Seller are not offers to sell and are subject to express confirmation by written quotation and/or acknowledgment by Seller. All Orders are subject to acceptance by Seller. All Orders must be in form and substance acceptance to Seller. Seller may refuse to accept any Order for any reason whatsoever without incurring any liability to Buyer. Seller reserves the right to correct clerical and stenographic errors at any time. All Orders shall be subject to a minimum charge as specifically stated at the time of quotation.
3. QUOTATION: Quotations are subject to these Terms and Conditions as specified thereon. No quotations shall be binding on Seller more than thirty (30) days after the issuance of such quotation.
4. SHIPPING DATES: Sales and shipments of Products are subject to Seller's ability to obtain raw materials, component parts and/or the Products; Seller’s current production schedules, governmental priorities and other governmental laws, regulations, orders, ordinances and restrictions that may be in effect from time to time; strikes, lock-outs and shortages of labor, acts of God and the elements, and any other cause of delay in the production, and/or shipment or delivery beyond Seller's control. Seller shall attempt to meet any shipment or delivery date specified, but in no event shall Seller otherwise be responsible or liable for failure to produce, ship or deliver by such date nor shall Seller be liable to Buyer or any third party for indirect or consequential damages due to delays in the production, shipment or delivery of Products, whether or not due to causes within Seller's control. In the event of any delay in Buyer’s acceptance of shipment of Products in accordance with scheduled shipping dates, which delay has been requested by Buyer, or any delay which has been caused by lack of shipping instructions, Seller may, at its option, invoice Buyer for the full contract price of such Products on the date scheduled for shipment or on the date on which the Products are ready for delivery, whichever occurs later.
5. WARRANTY: Seller warrants to Buyer that the Products will be free, under normal use and maintenance, from defects in material and workmanship for a period of twelve (12) months from the manufacture date as noted by date code, or rated hours of operation which ever occurs first, unless otherwise stated. As Buyer’s sole and exclusive remedy under this warranty, including but not limited to remedy for indirect or consequential damages, Seller will, at its option, repair or replace without charge any defective Products (as determined by Seller); provided, however, that (a) the Products involved are returned to Seller at a location designated by Seller, transportation charges prepaid by Buyer, and (b) Seller is notified in writing of the defect within twelve (12) months after the shipment date of the Products. Seller will issue Buyer an RMA (as defined in Section 10 below) for any defective Products.
This warranty specifically excludes and does not apply to the following:
a) Products damaged or abused in shipment without fault of Seller.
b) Defects and failure due to operation, either intentional or otherwise: (i) above or beyond rated capacities or (ii) in an otherwise improper manner.
c) Defects and failures due to misapplication, abuse, improper installation or abnormal conditions of temperature, humidity, abrasives, dirt, or corrosive matter.
d) Products which have been in any way tampered with or altered or repaired by any person other than an authorized employee or representative of Seller.
e) Products, parts and systems designed by Buyer.
OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, SELLER HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, WHETHER ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THIS SECTION STATES BUYER'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY. THE MAXIMUM LIABILITY, IF ANY, OF SELLER FOR ALL DIRECT DAMAGES, INCLUDING WITHOUT LIMITATION CONTRACT DAMAGES AND DAMAGES FOR INJURIES TO PERSONS OR PROPERTY, WHETHER ARISING FROM SELLER'S BREACH OF THIS AGREEMENT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT WITH RESPECT TO THE PRODUCTS, OR ANY SERVICES IN CONNECTION WITH THE PRODUCTS, IS LIMITED TO AN AMOUNT NOT TO EXCEED THE PRICE OF THE PARTICULAR PRODUCTS. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY LOST OR ANTICIPATED PROFITS, OR ANY INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER WARRANTS PRODUCTS ONLY TO BUYER AND ONLY SO LONG AS THEY ARE OWNED BY BUYER OR, IF BUYER IS A DISTRIBUTOR OF SUCH PRODUCTS, BY FIRST PURCHASER FROM BUYER.
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6. RESTRICTIONS ON USE: Seller does not permit Products to be used in, or in connection with, any medical device (as such term is defined in 21 U.S.C.S. § 321(a)(h)), the primary function of which is to sustain or prolong human life (each, a “Prohibited Device”). By accepting delivery of Products, Buyer covenants that Buyer will not, and Buyer will use commercially reasonable efforts to ensure that third parties do not, use any Products in, or in connection with, any Prohibited Device. Buyer will indemnify and hold Seller, its current and future stockholders, officers, directors, employees and agents harmless from any and all losses, costs, damages, expenses or liabilities, including, without limitation, court costs and attorneys’ fees and expenses, arising out of, in whole or in part, directly or indirectly, Buyer’s breach of the covenant contained in this Section 6.
7. TERMS OF PAYMENT: Orders are subject to approval of Seller’s credit department. After credit approval, payment terms will be established for each customer. In the event Products shall be manufactured to order, partial or complete pre-payment may be required, on such terms and pursuant to such instruments as may be acceptable to Seller. Buyer acknowledges that Seller shall have a purchase money security interest in all Products until full payment is made by Buyer for such Products. For invoice purposes, delivery shall be deemed to be completed at the time the Products are shipped from Seller. If in Seller’s judgment the financial condition of Buyer at any time does not justify continuance of production or shipment on the terms of payment originally specified, Seller may require full or partial payment in advance, on such terms and pursuant to such instruments as may be acceptable to Seller. In the event of the bankruptcy or insolvency of Buyer, or in the event any proceeding is brought by or against Buyer under any applicable bankruptcy or insolvency laws, or in the event Buyer ceases or suspends doing business, or in the event Buyer commits any other act amounting to a business failure, then Seller shall be entitled to cancel any Orders of Buyer then outstanding and shall receive reimbursement for cancellation charges pursuant to Paragraph 8 hereof. All Orders are subject to the payment terms specified at the time of quotation or expressly identified on Seller’s invoice to Buyer. In addition to all other remedies Seller has under applicable law, in the event of Buyer's default, Seller shall have the right to charge interest on overdue balances at the rate of one and one-half (1½%) percent per month. Buyer shall also pay all Sellers’ costs of collection including without limitation, attorney's fees and costs. Time is of the essence with respect to Buyer’s obligations to pay all amounts due to Seller.
8. ORDER CANCELLATION: Any cancellation by Buyer of any Order must be made in writing and receive the written approval of Seller. In the event of a cancellation of an Order by Buyer, Buyer shall pay to Seller the reasonable costs, expenses, damages and lost profit of Seller incurred thereby, including but not limited to engineering expenses, commitments to suppliers of Seller and sub-contractors, as determined by Seller.
9. ORDER CHANGES: Any changes by Buyer to an Order which affect tooling, parts, or material presently in manufacturing processes, or purchased by Seller may be charged to Buyer by Seller. This will include the costs of work in process or the purchased Products at the date of change. Seller will notify Buyer of such charges when a change is received by Seller from Buyer.
10. RETURNED PRODUCTS: If Buyer desires to return any Products, a written return material authorization (an “RMA”) must first be obtained from an authorized representative of Seller, who will advise Buyer of the credit to be allowed and re-stocking charges to be pre-paid by Buyer in regards to such return, as determined in Seller’s sole discretion. Seller shall not be required to issue an RMA, or to accept returned Products, that are not deemed saleable by Seller. Seller shall not be required to issue an RMA with respect to any Products more than thirty (30) days after the shipment date of the Products, and an RMA shall only be valid for a period of thirty (30) days after its issuance. All returned Products must be accompanied by an RMA and an original invoice.
11. PACKING: Buyer shall be responsible for all costs of packing and shipping Products. Such costs may be included in Seller’s invoice with respect to the Products or billed separately.
12. TRANSPORTATION POLICY; RISK OF LOSS: The F.O.B. point of shipment is Seller’s factory, and is expressly defined in Seller’s quotation. All shipping costs shall be the responsibility of Buyer, but Seller, at its option, may pre-pay such costs and add such costs to Buyer’s invoice, or bill such costs separately. Risk of loss with respect to shipments shall pass to Buyer when a shipping carrier signs for and accepts the shipment of Products. Method and route of shipment will be at the discretion of Seller. All shipments shall be at Buyer’s risk and shall be insured, if at all, solely at Buyer’s expense – Seller shall have no obligation to insure the Products.
13. TAXES: Seller’s quotations or published price lists do not include any applicable sales, use, excise, customs or similar duties or taxes. The amount and payment of any such tax shall be the sole responsibility of Buyer.
14. WAIVER OF BREACH: No waiver by Seller of any breach of these Terms and Conditions shall constitute a waiver of any other breach.
15. DATA; CONFIDENTIAL INFORMATION. Any specifications, drawings, technical information or other data furnished by Seller to Buyer shall remain Seller’s property. Buyer shall hold in confidence all information and material disclosed by or on behalf of Seller (“Confidential Information”), unless such information or material: (i) is or becomes generally available to the public other than as a result of disclosure by Buyer; (ii) is already known by or in the possession of Buyer at the time of disclosure by Seller; (iii) is independently developed by Buyer without use of or reference to Seller’s Confidential Information; or (iv) is obtained by Buyer from a third party that has not breached any obligations of confidentiality.
16. LAWS: After acceptance of the Order, Seller’s obligations to Buyer shall not be affected by any change in Buyer’s obligations or responsibilities under the statues, regulations or orders of any federal, state or local government. All quotations made and all Orders accepted by Seller are governed by and construed under the laws of the State of North Carolina without giving effect to principles of choice or conflicts of law.
17. PARTIAL INVALIDITY: If any term or provision hereof shall to any extent be illegal, invalid or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. |
