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1. ACCEPTANCE
AND BINDING EFFECT. THE TERMS AND CONDITIONS OF SALE CONTAINED
HEREIN SHALL BE APPLICABLE TO AND GOVERN THE SALE AND SHIPMENT OF
ALL MERCHANDISE. STATEK ACCEPTS PURCHASE ORDERS CONDITIONED UPON
BUYER'S ASSENT TO THESE TERMS. SUCH ASSENT SHALL BE CONCLUSIVELY
PRESUMED UNLESS BUYER, WITHIN SEVEN (7) DAYS OF RECEIPT OF THESE
TERMS, CANCELS THEIR ORDER IN WRITING OR COMMUNICATES TO STATEK, BUYER'S
UNWILLINGNESS TO ACCEPT ANY SPECIFIC TERM OR CONDITION HEREOF IN
EITHER OF SUCH EVENTS, STATEK SHALL NOT BE DEEMED TO HAVE ACCEPTED
BUYER'S PURCHASE ORDER UNTIL ANY CHANGES IN THE TERMS AND CONDITIONS
HEREOF HAVE BEEN MUTUALLY AGREED UPON AND REDUCED TO WRITING AND
SIGNED BY AUTHORIZED REPRESENTATIVES OF STATEK AND BUYER. THE TERMS
AND CONDITIONS SET FORTH HEREIN, AS MODIFIED BY ANY SUCH WRITTEN
AGREEMENT, SHALL SUPERSEDE ALL INCONSISTENT TERMS AND CONDITIONS
WHICH MAY BE CONTAINED IN ANY PURCHASE ORDER OR IN ANY OTHER PURCHASE
DOCUMENTS SUBMITTED TO STATEK BY BUYER.
2. PRICES.
Prices are F.O.B. Statek's plant, Orange, California, and do not
include any manufacturer's excise tax, sales tax or other tax or
duty of any nature whatsoever applicable to the sale or delivery
of the merchandise ordered. Any transportation and insurance applicable
to the merchandise shipped to Buyer shall be paid for by Buyer or
repaid to Statek if advanced by it. In the event Statek is required
to pay any foreign tax or duty as a condition of delivering ordered
merchandise to Buyer, Buyer shall provide Statek at the time the
order is submitted with an exemption certificate or other similar
document acceptable to taxing or customs authorities or shall repay
Statek for any such tax or duty paid by Statek, promptly upon being
invoiced therefore.
3. DELIVERY.
Unless otherwise specified in the purchase order, Statek shall have
the right to deliver all of the goods at one time or in portions
from time to time. Title to all items shall remain within Statek
for security purposes as conditional vendor until the purchase price
thereof has been paid in full. Statek shall have the right, in addition
to all others it may possess, at any time, for credit reasons or
because of Buyer's default or defaults, to withhold shipments, in
whole or in part, and to recall goods in transit, retake same, and
repossess all goods which may be stored with Statek for Buyer's
account, without the necessity of taking any other proceedings,
and Buyer consents that all the merchandise so recalled, retaken,
or repossessed shall become the absolute property of Statek, provided
that Buyer is given full credit therefore. The foregoing shall not
be construed as limiting, in any manner, any of the rights or remedies
available to Statek because of any default of Buyer under the Uniform
Commercial Code as in force and effect in the State of California.
Shipping dates
are approximate and unless otherwise specified by Buyer, shipment
will be by means deemed most appropriate by Statek. Irrespective
of who selects the carrier and who initially pays the cost of transportation,
risk of loss or damage to the merchandise passes to Buyer upon delivery
to the carrier.
Products will be
packaged in accordance with standard commercial practices for domestic
shipment unless otherwise specified by Buyer. All claims for loss
or damage must be made by Buyer to the carrier, but Statek will
assist insofar as practical in securing satisfactory adjustment
of such claim.
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4. PARTIES EXCUSED
WHERE PERFORMANCE IMPOSSIBLE: CANCELLATION. Statek shall not
be responsible for any failure to make delivery or delay in the
delivery of all or any party of the merchandise purchased by Buyer,
due to (a) government statute, ordinance or regulations, (b) strike
or other labor trouble, (c) damage to or destruction in whole or
part of the merchandise or Statek's manufacturing plant, (d) fire,
flood, earthquake, riot, war or other casualty or act of God, (e)
lack of, or inability to obtain, raw materials, fuel or supplies,
or (f) any other cause, contingency or circumstance not subject
to State's control which prevents or hinders the manufacture or
delivery of the merchandise. In the event of a delay in delivery
of not more than thirty days resulting from any such cause, the
date of delivery shall, at the request of Statek, be deferred for
a period equal to that of the delay. If the delay in delivery shall
be more than thirty days, Buyer shall have the option to cancel
the purchase order on written notice to Statek promptly after the
expiration of such thirty-day period.
Buyer shall have
the right to cancel any purchase order upon the occurrence of any
of the events specified in the preceding paragraph, if such event
affects Buyer's premises provided that Buyer shall notify Statek
of its intention to cancel the order promptly upon the occurrence
of the event. Upon such cancellation, Buyer shall reimburse Statek
for expenses incurred by Statek with respect to such merchandise
prior to notification of cancellation, which, in the event that
the merchandise was or is in the process of being manufactured to
Buyer's own specifications, shall include the cost of producing
finished goods and work in process, as well as the costs of material
procurement, and reasonable overhead and general and administrative
expenses applicable thereto. Buyer may not cancel any purchase order
for any other reason without Statek's prior written consent.
5. INSPECTION/ACCEPTANCE.
Buyer shall inspect the merchandise promptly upon receipt. Failure
to so inspect within thirty days after receipt shall constitute
a waiver of Buyer's right to inspection and shall constitute acceptance
of the merchandise. Buyer shall have the opportunity, at the time
and place of inspection, to run adequate tests to determine whether
the merchandise tendered conforms to specifications. Use of a portion
of the merchandise for the purpose of testing shall not constitute
acceptance. Notice of any defects, damages, failure to meet specifications
or of any shortage in merchandise delivered to Statek by Buyer must
be given in writing to Statek within five days of inspection by
Buyer. Failure to give such notice within the prescribed period
shall constitute acceptance of the merchandise. If merchandise which
does not fully conform to the specifications of the purchase order
as accepted by Statek, is rejected by Buyer, Statek shall have the
right to cure any such defect by shipping conforming merchandise
to Buyer within a reasonable time.
6. WARRANTY.
Statek warrants that all merchandise manufactured by it is free
from defects in material and workmanship. Any claim of breach of
said warranty shall be made within one year of receipt of merchandise
by Buyer. Any merchandise claimed to be defective must be returned
to Statek, transportation charges prepaid, but only after notice
to Statek prior to the return. Upon such return, Statek's sole obligation
shall be to repair or replace (at Statek's option any expense) all
defective merchandise and return the new or repaired merchandise
to Buyer at Statek's expense, and refund to buyer the cost of transportation
of any defective merchandise returned to Statek. Statek warranty
shall not be applicable to any merchandise which has been altered
or repaired by anyone other than an authorized representative of
Statek or to any merchandise which has not been properly installed
or has been subject to misuse of accident.
7. DISCLAIMER
OF WARRANTY. THE ABOVE WARRANTY IS IN LIEU OF ALL OTHER EXPRESS
OR IMPLIED WARRANTIES INCLUDING ANY WARRANTY OF MERCHANTABILITY
OR OF FITNESS FOR A PARTICULAR PURPOSE. BUYER IS RESPONSIBLE FOR
DETERMINING THE SUITABILITY OF STATEK'S PRODUCTS IN THEIR DEVICES,
ASSEMBLIES OR SYSTEMS AND STATEK SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL
DAMAGES REGARDLESS OF WHETHER STATEK'S PRODUCTS ARE USED SEPARATELY
OR IN COMBINATION WITH OTHER COMPONENTS.
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8. PROTECTION
OF PATENTS AND TRADE SECRETS. Statek shall indemnify Buyer and
its customer against any loss, damage or liability, including costs
and expenses, arising out of any actual or alleged infringement
of any patent, copyright or trademark resulting from the use or
sale by Buyer or Buyer's customers of merchandise manufactured by
Statek, except those products specially manufactured according to
Buyer's design specifications or other requirements. However, the
aforesaid indemnify, shall be null and void unless Buyer notifies
Statek in writing of any claim of infringement within thirty days
of knowledge thereof and permits Statek to participate in and direct
the defense thereof. If any merchandise shall be specially manufactured
by Statek according to Buyer's design specification or other requirements,
Buyer shall indemnify Statek against any loss, damage or liability,
including any costs and expenses, arising out of any actual or alleged
infringement of any patent, copyright or trademark resulting from
Statek's manufacture or sale to Buyer of such merchandise.
9. TERMS OF
PAYMENT. Payment for merchandise shipped shall be due within
thirty days from shipment unless otherwise specified in writing
by Statek. If at any time, in Statek's judgment, the financial condition
of buyer does not justify continuation of production or shipment
on the terms or payment originally specified, Statek may require
full or partial payment in advance or satisfactory security for
payment.
10. COMPLIANCE
WITH APPLICABLE LAW. Statek warrants and certifies that in the
manufacture and shipping of merchandise, Statek will comply with
all applicable rules, statutes, regulations and orders of the United
States and any state or political subdivision thereof including
the laws and regulations pertaining to labor, wages, hours and other
conditions of employment, and applicable price ceilings, if any.
11. MISCELLANEOUS.
Statek reserves the right to improve, change or discontinue any
product without incurring any liability for duplicating products
sold under prior orders. The terms and conditions provided for herein
shall be governed by and construed in accordance with the laws of
the State of California.
Any action for breach
of any purchase order as modified by these terms and conditions
must be commenced within one year after delivery of the merchandise
ordered.
In the event it
becomes necessary to bring legal proceedings to enforce or carry
out any of the provisions of the agreement between Statek and Buyer,
the prevailing party shall recover costs of enforcement including
court costs and reasonable attorney fees.
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