Thermacut, Inc. – Terms & Conditions
Thermacut, Inc Purchase Policy (Purchase Policy of the IBG Group)
Thermacut, Inc. - Terms of Purchase
All Thermacut, Inc. purchase orders are subject to the following terms and conditions. In these terms, “Buyer” means Thermacut, Inc. and “goods” and “services” refer to the goods or services to be purchased by Buyer from Seller as described on the face of the order.
1. Agreement. If the order is stated on its face to be an offer to purchase, but is in legal effect an acceptance of a prior offer by Seller, then Buyer’s acceptance is conditional upon Seller’s assent to all terms of the order that are additional to or different from the terms of Seller’s offer. If the order is stated on its face to be an acceptance of an offer by Seller, then Buyer’s acceptance is not conditional. By signing and returning a copy of the order or accepting the order electronically, or by shipping the goods or performing the services, Seller agrees to all of the terms contained in the order.
2. Price and Payment. Unless Buyer agrees otherwise in writing, Buyer will not be required to pay any sales, use, or other taxes arising because of Buyer’s purchase from Seller. Buyer will not be required to pay any late charge, interest, finance charge, or similar charge. Buyer’s payment of the purchase price does not indicate its acceptance of the goods or services. Payment terms will run from the latest of (a) the scheduled date for delivery or performance, (b) the actual date of delivery of conforming goods or performance of conforming services, (c) the date of Seller’s invoice, (d) in the case of capital equipment, completion of Buyer’s final inspection and acceptance after installation, and (e) in the case of tooling, approval by Buyer of production pieces produced by the tooling.
3. Delivery. Unless Buyer agrees otherwise in writing, Seller shall deliver the goods F.O.B. (Uniform Commercial Code) Buyer’s facility stated in the order, except that Buyer may at its option take delivery of all or any part of the goods at Seller’s facility. Time of delivery or performance is of the essence, and Buyer’s stated delivery or performance date cannot be extended or excused for any reason, including delays in manufacture or shipment that Seller cannot control, except with Buyer’s written approval.
4. Excess, Installment, and Early Deliveries. If Seller delivers more goods than Buyer ordered, Buyer will not have to pay for the excess. Unless Buyer agrees otherwise in writing, Seller will deliver all of the goods in a single delivery and not in installments. Buyer’s acceptance of a delivery containing less than the required quantity will not relieve Seller of its obligation to deliver the balance of the ordered goods at the price and on the other terms specified in the order. If Seller delivers the goods before the scheduled delivery date, Buyer may, at Seller’s expense and risk, either store them or return them to Seller. Buyer’s acceptance of an early delivery will not change the payment terms.
5. Warranties. Seller warrants that (a) the goods shall be new, (b) the goods and services shall be merchantable, of good material and workmanship, and fit for the purposes for which Buyer intends them and that any services covered by the order will be of good, workmanlike quality, free from faults and defects, (c) the goods and services shall conform to any samples, drawings, specifications, or standards that are referred to on the face of the order or that Buyer has otherwise specified or agreed to, (d) the goods, their manufacture, packaging, labeling, branding and sale and the services shall comply with all applicable federal, state, or local laws and regulations, including, without limitation, the Fair Labor Standards Act of 1938 and the Occupational Safety and Health Act of 1970. If Buyer requests it, Seller will give Buyer certificates of compliance with applicable laws and regulations. Buyer’s approval of a sample, drawing, specification or standard shall not relieve Seller of any of its warranties under this paragraph. Seller’s warranties extend to future performance of the goods and services and survive inspection, tests, acceptance, and payment. Seller also warrants and agrees that (v) Seller has all necessary experience, qualifications, expertise, authority, licenses and permits to enable it to perform its obligations under the order, (w) the order is the valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, (x) Seller is and, at the time of each order will be, solvent, (y) Seller has not offered or given, and shall not offer or give, any gratuity or thing of value to any employee of Buyer or of any affiliate of Buyer and (z) Seller is and shall continue to be in compliance with all equal employment and affirmative action provisions of Executive Order 11246, the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”), Section 503 of the Rehabilitation Act of 1973 and all implementing regulations under that Order, VEVRAA and Section 503.
6. Material Safety Data Sheet. Upon the initial purchase of every product containing a hazardous material (as defined in Title 29 CFR 1915.2(s)), Seller shall send a Material Safety Data Sheet to Buyer’s corporate safety department. The Material Safety Data Sheet supplied must be Form OSHA-20, or one similar which has been approved by OSHA. Seller shall supply Buyer with all revisions to data Sheets previously supplied.
7. Claims. Seller will indemnify and hold Buyer and its directors, officers and employees (“representatives”) harmless (and defend Buyer and its representatives, if Buyer requests) as to any claims, liabilities, and expenses (including, without limitation, attorneys’ fees and other legal expenses) brought against or incurred by Buyer or any of its subsidiaries, affiliates, agents or vendees because of (a) any breach by Seller of any of its warranties to, or agreements with, Buyer, (b) any claim of unfair competition or patent, trademark, or copyright infringement relating to the goods or any services, or (c) any death, injury, or damage to any person or property or any recall alleged to have been caused by the goods or services or by Seller’s manufacture of the goods or performance of the services.
8. Inspection. Buyer’s employees may at any time enter Seller’s premises to inspect and test the goods, Seller’s process of manufacture of them, and any materials, components, or work‑in‑process that is to be used in their manufacture.
9. Shut Down. If a material part of Buyer’s business is shut down, permanently or temporarily, because of anything Buyer cannot reasonably control (such as casualty or labor trouble), Buyer may cancel the order without liability except as to conforming goods delivered to Buyer or conforming services performed for Buyer before Buyer cancels.
10. Changes. Buyer may at any time, by written notice to Seller, change the (a) specifications of the goods or services, (b) time and place of delivery or performance, (c) method of packing or shipment, or (d) quantity of the goods or extent of the services. If this causes a change in Seller’s cost or time of performance, an equitable adjustment shall be made in the price or time for delivery or performance, or both, if Seller gives Buyer a written request for an adjustment within 20 days after Buyer notifies Seller of the change.
11. Termination at Buyer’s Option. Buyer may terminate any contract formed pursuant to the order, in whole or in part, at any time by written notice to Seller stating the extent and effective date of termination. Upon receipt thereof, Seller will, unless otherwise directed by Buyer, stop work and acquisition of materials in connection with the order and protect property in Seller’s possession in which Buyer has or may acquire an interest. Not later than 30 days from the effective date of termination, Seller may submit to Buyer its claim, if any, for reasonable compensation for termination. Buyer shall have the right to audit and inspect Seller’s books, records, and other documents relating to any such termination claim. If the parties cannot agree within a reasonable time upon the amount of fair compensation for the termination, Buyer shall pay to Seller the following amounts without duplication: (i) the purchase order price for goods or services completed in accordance with the provisions of this purchase order but not previously paid for, and (ii) the actual costs incurred by Seller and properly allocable or apportionable under recognized cost accounting practices to the terminated portion of the order, but not to exceed the contract price for the terminated portion of the order, less any other payments made by Buyer in respect thereof and less the value to Seller of any materials or work in process that Seller retains. These amounts will be payable upon delivery to Buyer of any completed goods. If Buyer shall have made payments of the purchase price to Seller that in the aggregate exceed the total amounts payable by Buyer to Seller under the preceding provisions, then Seller shall promptly refund the excess to Buyer. Termination under this paragraph will not impair Seller’s obligations or Buyer’s rights under Paragraphs 5, 7, 12, 13, 15, 16, 19, 20, 21 and 22 of these Terms of Purchase.
12. Buyer’s Rights. Without limiting other rights and remedies available to it, Buyer may, at its option, (a) return nonconforming goods to Seller, at Seller’s risk and expense, and require Seller either to give Buyer full credit against the price, or promptly to repair or replace the goods at Seller’s risk and expense; (b) retain the goods and set‑off losses against any amount due Seller; or (c) repair or replace the goods and charge Seller with the expense.
If at any time Seller defaults in the performance of any of Seller’s obligations to Buyer, Seller repudiates any contract formed pursuant to the order, or any warranty or representation that Seller made to Buyer in or in connection with the contract is false or misleading, then Buyer may terminate any contract formed pursuant to the order, in whole or in part, and Seller, to the extent demanded by Buyer, shall immediately deliver to Buyer all finished and unfinished goods, work‑in‑process, and raw materials acquired for use in the manufacture or processing of the goods and any designs, specifications or software that Buyer is purchasing from Seller. Payment of part or all of the purchase price by Buyer shall not be a precondition to Seller’s obligation to make the delivery. After Buyer’s damages for Seller’s breach or repudiation (including, without limitation, any cost of “cover” or of completing the manufacture or processing of the goods) are determined, Buyer shall pay to Seller any excess of the purchase price over Buyer’s damages. Termination by Buyer under this paragraph will not impair Seller’s obligations under Paragraphs 5, 7, 13, 15, 16, 19, 20, 21 and 22 of these Terms of Purchase.
In addition to Buyer’s rights set out in these Terms of Purchase, Buyer has all of the other rights and remedies that the law gives to buyers, including the right to recover incidental and consequential damages resulting from any breach by Seller. Buyer will not lose any right just because it did not exercise it. A reasonable time for Buyer to reject or revoke acceptance of the goods is not less than one year from the date of delivery. Buyer will have the full statutory period of limitations to bring any action arising out of Buyer’s agreement with Seller. Seller agrees that a reasonable time for Buyer to notify Seller of any breach is not less than two years from when Buyer discovers the breach.
13. Furnished Items. Any drawings, specifications, methods of manufacture, intellectual property, documents and other information and any tooling or other property that Buyer may furnish to, or acquire from, Seller in connection with Seller’s manufacture of the goods or performance of the services (“Furnished Items”) are and at all times shall remain Buyer’s property. Seller will maintain in good condition any Furnished Items; mark the Furnished Items “Property of Thermacut, Inc.”; not commingle the Furnished Items with property of Seller or third parties; allow Buyer to inspect and examine them at any time; and return them to Buyer upon its request. All Furnished Items are confidential, and Seller will not furnish any of them, or disclose their contents, to any third party (including any of its suppliers) or use any Furnished Items in the manufacture or sale of products to, or in the performance of services for, any third party.
14. Government Contracts. If the goods or services covered by the order are to be used by Buyer in connection with a contract with the United States or other government, then all terms and conditions required by the government contract or by applicable law or regulation with respect to the order (“Government Terms”) are incorporated herein by reference. If any provision of the order is inconsistent with any Government Term, the Government Term will control.
15. Insurance. Seller shall maintain insurance coverage that will fully protect both Seller and Buyer from any and all claims and liabilities of any kind or nature for property damage, personal injury, death, and economic damage, to any person, that shall arise from the goods or their use or the performance of the services or any activities connected therewith. If services are covered by the order, Seller shall maintain employee’s liability and compensation insurance that will protect Buyer from any and all claims and liabilities under any applicable worker’s compensation or occupational safety and health laws. All insurance required by this paragraph shall be in such amounts and coverages, shall name Buyer as an additional insured and loss payee, and shall be issued by such insurers, as shall be satisfactory to Buyer. Upon request by Buyer at any time, Seller shall furnish Buyer with certificates evidencing this insurance.
16. Prepayment. If Buyer pays any part of the purchase price of the goods before delivery to Buyer, (a) title (but not risk of loss) to the goods paid for shall pass to Buyer upon identification of the item to the contract, (b) to the extent necessary to protect Buyer’s title to the goods, Seller grants Buyer a security interest in the goods to secure Seller’s obligation to deliver them to Buyer and all of Seller’s other present and future obligations to Buyer and (c) Seller shall obtain from each person that holds a security interest in or lien upon the goods a written agreement releasing that security interest or lien or subordinating it to Buyer’s interest in the goods.
17. Work on Premises. If performance of services by Seller or delivery, installation or servicing of the goods by Seller involves operations by its employees or subcontractors on the premises of Buyer, (a) Seller shall at all times enforce strict discipline and maintain good order among all persons engaged in the services and shall cause them to comply with all fire prevention and safety rules and regulations in force at the premises, and (b) Seller shall keep the premises free from accumulation of waste materials and rubbish caused by performance of the services and upon completion shall promptly remove all of Seller’s equipment and surplus materials.
18. Services. If the order covers services, (a) Seller is an independent contractor, and neither Seller nor any of Seller’s employees or agents shall be considered agents or employees of Buyer, and (b) Seller shall furnish, at Seller’s expense, all labor, materials, equipment, transportation, facilities, and other items necessary to perform the services.
19. Confidentiality and Non-Use. Seller shall not sell or offer to sell or otherwise provide to anyone other than Buyer any goods made in accordance with any drawings, designs or specifications that Buyer furnishes to Seller or that incorporate, embody or are made in accordance with any of Buyer’s intellectual property. Seller shall maintain the confidentiality of, and shall not disclose or use or permit to be disclosed or used or to be viewed by any third party (including any of Seller’s suppliers), the goods, any designs of or specifications for the goods, any Buyer Property or any information concerning Buyer’s business, operations or activities, including, without limitation, information concerning Buyer’s present or proposed products, product developments, plans, strategies, finances, know-how, sales, customers and marketing or sales techniques (“Confidential Information”), except that Seller may disclose Confidential Information to a third party (other than a competitor of Buyer or a subsidiary or affiliate of a competitor) to the extent disclosure is necessary in order for Seller to perform its obligations under the Contract. If Seller breaches or threatens to breach this paragraph or Paragraph 13, then Buyer’s remedies at law will be inadequate. Therefore Buyer shall have the right of specific performance or injunctive relief, or both, in addition to any and all other remedies and rights at law or in equity, and Buyer’s rights and remedies shall be cumulative.
20. Intellectual Property. All inventions (whether or not patentable), devices, technologies, ideas, improvements, processes, systems, trademarks, trade names, trade dress, service marks, names, software and other works and matters that Seller creates or develops in the course of Seller’s performance of the services or Seller’s design or development of the goods for Buyer, including all proprietary rights in the foregoing (“Intellectual Property”) shall be Buyer’s sole property, and Seller assigns, and agrees to assign, to Buyer all right, title and interest that Seller now has or in the future acquires in the Intellectual Property. All copyrightable works that Seller creates or develops in the course of Seller’s performance of the services or Seller’s design or development of the goods for Buyer shall be considered “works made for hire” within the meaning of the federal Copyright Act of 1976, as amended, and under the equivalent laws of any other country. To the extent that any such copyrightable work is not considered a “work made for hire,” it shall be the sole property of Buyer, and Seller assigns, and agrees to assign, to Buyer all right, title and interest that Seller now has or in the future acquires in it and in all copyright rights in it. Seller shall sign and deliver to Buyer all assignments and other documents, and Seller shall take all other actions, that Buyer requests for the purpose of perfecting Buyer’s ownership of and title to the Intellectual Property and in any copyrightable work that is not considered a “work made for hire” and in all copyright rights in it. If the goods or their design are subject to any pre-existing patent rights or other proprietary rights that Seller holds, then Seller grants to Buyer an irrevocable, non-exclusive, royalty-free license of the patent rights and other proprietary rights to the extent necessary to enable Buyer to modify, repair or rebuild any or all of the goods. This license is in addition to all licenses impliedly granted to Buyer as a purchaser of the goods. Seller shall not use Buyer’s name or any trademark, trade name, service mark or trade dress that Buyer owns or that is licensed to Buyer or to any affiliate of Buyer, without Buyer’s express, written consent, and Seller shall not sell to anyone other than Buyer any goods bearing any such trademark, trade name, service mark or trade dress.
21. Unsafe or Unfit Goods. If a governmental agency declares that any of the goods or any material included in any of the goods or any packaging or supplies used in connection with the goods, or if Buyer at any time believes in good faith that any of the goods or any such material, packaging or supplies, (i) does not or may not conform with an applicable consumer product safety standard or (ii) is or may be otherwise unsafe or unfit for the intended use of the goods, then, without limiting other rights and remedies that are available to Buyer under these Terms of Purchase or applicable law, (1) Seller shall give Buyer written notice of any such declaration and shall furnish to Buyer copies of the declaration and of all relevant notices, documents and correspondence, (2) Seller shall stop including the material in the goods, (3) Buyer may terminate the order or the Contract, without liability to Seller, by giving written notice to Seller, which shall be effective immediately or on any later date that the notice specifies, (4) if Buyer does terminate, then (a) Buyer’s obligations under the Contract shall terminate immediately and Buyer shall not be obligated to pay Seller damages or other compensation by reason of the termination and (b) Seller shall, unless Buyer directs otherwise, stop work and acquisition of materials under the Contract and protect property in Seller’s possession in which Buyer has or may acquire an interest, (5) Buyer shall have the right (a) to recall (i.e. purchase or repurchase) any or all of the goods from its customers and end-users and any others having possession of the goods, and Seller shall reimburse Buyer for all costs that Buyer incurs in doing so and shall assist Buyer and any applicable governmental agency in the recall, to the extent that Buyer requires Seller to do so, and (b) to return to Seller, at Seller’s expense, all such goods, packaging or supplies that Seller shall have previously delivered to Buyer and to require Seller to refund the price to Buyer, whether or not Buyer would then have the right under applicable law to reject or to revoke acceptance of those goods, packaging or supplies, (6) to the extent that Buyer requests, Seller shall assist Buyer in any or all aspects of a recall, including, without limitation, developing a recall strategy and preparing and furnishing reports, records and other information, (7) if Seller demonstrates to Buyer’s satisfaction that there is a safe and fit substitute for any such material, packaging or supplies and that the substitute conforms to all of the requirements of the Contract and that Seller can and will use the substitute in or with respect to the goods, then Buyer shall have the right, but no obligation, in Buyer’s sole discretion, to reinstate the Contract and to require Seller to perform in accordance with the Contract, except that Seller shall use the substitute goods or materials, and (8) whether or not Buyer terminates and/or reinstates the Contract, Seller shall pay to Buyer an amount equal to all damages that Buyer incurs by reason of the declaration by the governmental agency and/or such good faith belief by Buyer and any resulting recall or delay in performance or return of goods to Seller and/or any termination of the Contract by Buyer.
22. Other Terms. Seller shall not have, and hereby waives, any security interest in or lien (including any common law or statutory lien) upon any Furnished Items or the goods. Seller may not delegate or subcontract any of its obligations under the order without Buyer’s written consent. Buyer may deduct from, recoup and set off against, any amounts at any time owing to Seller under the order any damages or other amounts then owing to Buyer by Seller, whether under the order or otherwise and whether Seller shall have assigned its rights to payment under its agreement with Buyer. The rights of any such assignee shall be subject to all the terms of Seller’s contract with Buyer and to all claims and defenses that Buyer has against Seller. If at any time Buyer has reasonable grounds for insecurity as to Seller’s performance, Seller shall provide adequate assurance of due performance within 10 days after demand by Buyer, which is agreed to be a reasonable time.
23. Applicable Law. This agreement has been made in New Hampshire, and it will be governed by, and interpreted according to, New Hampshire law. If Buyer and Seller get into a lawsuit, it may be handled by any appropriate state or federal court in New Hampshire, and Seller waives any objection that such court is an inconvenient forum and consents that such court will have personal jurisdiction over Seller.
24. Complete Agreement. Seller has not made any promises or representations to Buyer, and Buyer has not made any to Seller, that are not in this agreement. Any change in, or waiver of, any provisions of this agreement must be in writing signed by an authorized officer of Buyer.
Thermacut, Inc. - Terms of Sale
All sales by Thermacut, Inc. (“Seller”) to a customer (“Buyer”) are subject to the following terms. “Goods” refers to the product or products being sold by Seller.
1. Contract Formation; Entire Agreement. These terms constitute Seller’s offer to sell goods to Buyer. Seller objects to any different or additional terms and rejects any prior offers received from Buyer. Seller may withdraw or change this offer anytime before Buyer accepts the offer. If Buyer has not otherwise agreed to these terms, Buyer’s acceptance of delivery of, or payment for, the goods will constitute Buyer’s acceptance of these terms. Upon acceptance by Buyer, these terms and the terms on Seller’s quotation and acknowledgment shall be the final, complete, and exclusive statement of the terms and conditions of the agreement between the parties. Any changes, modifications, or additions to these terms are binding and enforceable only if made in writing and signed by both parties.
2. Prices. The prices of goods will be Seller’s prices in effect on the date of shipment. Prices are subject to change without notice and are exclusive of all federal, state, local, and foreign taxes of any kind, whether or not invoiced by Seller. Applicable freight charges will be added to each invoice. All excise, privilege, occupation, sales, use, personal property and other taxes (whether federal, state, local, or foreign) applicable to the sale, purchase, storage, use, or ownership of the goods, and the payment or collection of which Seller is liable, shall be paid by Buyer in addition to the price of the goods, whether or not the additional charges are reflected on Seller’s invoice. Seller is required to charge applicable sales and use taxes unless Buyer provides Seller with a tax exemption certificate. Any payment that is not paid when due shall accrue a finance charge of 1.5% per month.
3. Delivery and Delay. Delivery of the goods shall be F.O.B. Seller’s factory, but risk of loss of the goods shall pass to Buyer upon identification of the goods to the contract between Buyer and Seller. Shipping dates are estimates only, and time is not of the essence. Seller may ship all of the goods at one time or in portions from time to time. Seller shall have the right, but not the obligation, to determine the method of shipment and routing. Seller shall not be liable for damages resulting from any delay or failure to deliver goods caused in whole or in part by circumstances beyond Seller’s control (including, but not limited to, casualty, labor trouble, accidents or unavailability of supplies or transportation), and the time for delivery shall be extended for the period of the delay. If Buyer causes or requests delay in the manufacture or shipment of goods, Buyer shall pay Seller for all costs, losses, and damages resulting from the delay. Seller shall not be required to ship the goods unless and until Buyer shall have paid in full the purchase price of all tooling that Seller shall have ordered for use in producing goods.
4. Payment Terms. Payment in full of the price is due thirty (30) days from the invoice date, without discount. All payments will be invoiced and must be in U. S. dollars. With respect to any or all purchases, Seller may, in its sole discretion, ship goods to Buyer C.O.D. or require Buyer to pay for goods prior to shipment or to provide security reasonably satisfactory to Seller to assure payment when due. A finance charge of 1.5 percent per month (18 percent per year), or such lesser rate as may be the maximum rate permitted by law, shall be assessed on all past due accounts. Seller may suspend performance under this agreement or any other agreement with Buyer until Buyer’s account is current. Buyer shall pay all expenses incurred by Seller in collecting amounts due from Buyer, including attorney fees.
5. Returns. Buyer shall not return any goods to Seller except with a Returned Goods Authorization (RGA) number clearly marked on the package and referenced in the shipping documents. Buyer may obtain an RGA number by providing Seller with the original purchase order number and/or the Seller’s order number, the date of order, a description of the goods and reason for return. This information is found on the invoice for the goods. Credit must be requested within 90 days of the delivery date. If, after investigation, Seller consents to the return of the goods, Seller will issue an RGA number to Buyer. Any goods returned for credit must be shipped to Seller freight prepaid, and Buyer shall pay Seller a restocking charge as established by Seller from time to time. Seller shall not in any event be required to accept return of any used, damaged, defaced, or obsolete goods. Buyer must use any credit issued by Seller within 90 days after issuance. If the credit is not used or a refund requested within 90 days, any remaining credit balance will be automatically canceled and Seller shall have no further liability or obligation with respect to the credit balance. Buyer will not accept the return of any goods purchased more than one year prior to the date of the requested return.
6. Destruction of Goods. If the goods are destroyed in whole or in part, before risk of loss passes to Buyer, whether the destruction is caused by Seller’s negligence or otherwise, Seller may, at its option, terminate this agreement and be excused from all obligations under this agreement without liability to Buyer.
7. Warranty; Limitations. Seller warrants to the original Buyer only that the goods will be free from defects in materials and workmanship at the time of delivery to Buyer. For purposes of this warranty, a defective item is an item that is found by Seller to have been defective in materials or workmanship, if the defect materially impairs the value of the goods to Buyer. If Buyer shall have approved a sample or drawing of, or specifications for, the goods, then the goods shall not be defective to the extent they conform to the sample, drawings, or specifications.
Seller’s liability under this warranty shall be limited at its sole option to repairing or replacing any defective goods at Seller’s factory or issuing a credit to Buyer for the purchase price of the defective goods. In any case, Seller shall have no liability under this warranty except for goods returned to Seller’s factory, freight prepaid, and with a valid RGA number (as mentioned in Paragraph 5) within ninety (90) days after delivery of the goods to Buyer. If Buyer does not return the defective goods to Seller within ninety (90) days after the delivery of the goods to the Buyer, any claim for breach of warranty shall be conclusively deemed to have been waived and Seller shall not be liable under this warranty. Seller’s acceptance of any goods returned shall not be deemed an admission that the goods are defective, or in breach of any warranty, and if Seller determines that the goods are not defective based on Seller’s accepted method of testing, the goods shall be reshipped to Buyer at Buyer’s expense. All parts returned and retained by Seller shall become Seller’s property. Seller will not accept or be liable for back charges for labor or repair costs incurred by Buyer without the prior written consent of Seller. This warranty shall not apply to any goods that have been altered or repaired, or that have been subject to misuse, negligence or accident, including, without limitation, use and operation of the goods while any parts are loose, broken or damaged or have been used with parts other than original Seller parts, which may affect performance or safety. Seller’s liability for any defect in the goods shall not exceed the purchase price of the goods.
THE WARRANTIES HEREIN ARE IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. IN PARTICULAR, SELLER MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Seller shall not be liable for incidental or consequential damages arising from any product defect, delay, recall, nondelivery or other breach. Seller shall not be liable to Buyer in tort, including, but not limited to any claim for negligent manufacture of the goods or for the omission of any warning therefrom.
No employee, representative, agent or distributor of Seller except the President of Seller has authority to modify, expand or extend this warranty, to waive any of the limitations or exclusions, or to make any different or additional warranties with respect to the goods. On any resale of the goods, Buyer shall contractually limit its customer’s rights and remedies against both Buyer and Seller to the same extent as Buyer’s rights and remedies are limited under this warranty. Notwithstanding any other provision in this agreement, Seller shall not be liable to a customer of Buyer for any modification, extension or expansion of this warranty by Buyer beyond the scope of this warranty or for any different or additional warranties made by Buyer with respect to the goods.
8. Suitability. Buyer shall determine the suitability of the goods for Buyer’s intended use and shall assume all risk and liability whatsoever in connection with that determination. Many states and localities have codes and regulations governing sales, installation, and/or use of goods for certain purposes, which may vary from neighboring areas. Seller does not guarantee compliance with those local laws and regulations and shall not be responsible for Buyer’s use of the goods. Before purchasing the goods, Buyer should review applicable national and local laws and regulations to be sure the goods are suitable for Buyer’s intended use.
9. Government Contracts. Seller shall not be liable for making Seller’s goods conform to any regulations applicable to use of the goods by the United States government unless specifically agreed to in writing between Seller and Buyer.
10. Claims for Errors. Claims for errors, omissions, damages, defects or shortages on any order must be made in writing and mailed within five (5) days after delivery of the goods to Buyer. A shortage claim must be accompanied by a sworn affidavit. If a claim is made by Buyer that calls for Seller’s representatives to inspect before settlement of the claim, Buyer will be responsible for costs relative to the inspecting if Buyer’s claim is found to be unwarranted or if the claim is denied for valid reasons. Failure to notify Seller of a defect in accordance with this paragraph shall be equivalent to acceptance of the goods.
11. Intellectual Property; Hold Harmless. If any goods are manufactured or sold by Seller to meet Buyer’s specifications or requirements and are not a part of a standard line offered by Seller to the trade generally, in the usual course of Seller’s business, Buyer agrees to indemnify, hold harmless and defend Seller against all liabilities, costs, damages, judgments and expenses (including attorney fees and costs) arising from any actual or alleged claim of unfair competition or infringement of any United States or foreign patent, trademark or copyright asserted with respect to the manufacture or sale of the goods.
12. Tools and Equipment. Any equipment (including, but not limited to, tools, dies, jigs, etc.) that Seller shall acquire or contract specifically for use on Buyer’s order shall be and remain the property of Seller and always in Seller’s possession and control. Any charge that Seller shall make to Buyer for tools and equipment shall be for their use only. In the event that Buyer shall furnish Seller with any materials or equipment belonging to Buyer, Seller will care for and store the materials but shall not be liable for loss or damage to them.
13. Indemnification. Buyer shall indemnify, hold harmless and defend Seller from any and all liabilities suffered or incurred by Seller as a result of, or in connection with, any act, omission or use of the goods by Buyer, its employees or customers, any breach of these terms by Buyer, and any modification, extension, or expansion by Buyer of the warranty contained in these terms. Liabilities shall include all costs, claims, damages, judgments and expenses (including incidental and consequential damages and attorney fees and costs).
14. Remedies of Seller. Seller shall have all rights and remedies provided by law in addition to the rights and remedies provided in these terms. Seller’s rights and remedies shall be cumulative and may be exercised from time to time. In a proceeding or action relating to a breach of these terms by Buyer, Buyer shall reimburse Seller for reasonable costs and attorney fees incurred by Seller. No waiver by Seller of any breach by Buyer shall be effective unless in writing, nor operate as a waiver of any other breach or of any later breach of the same term. Seller shall not lose any right because Seller has not exercised the right in the past.
15. Interpretation; Parol Evidence. No course of dealing between Seller and Buyer and no usage of trade shall be relevant to supplement or explain any of these terms. Acceptance or acquiescence in a course of performance shall not be relevant to determine the meaning of these terms even though the accepting or acquiescing party has knowledge of the performance and opportunity for objection. Whenever a term defined by the Uniform Commercial Code is used, the definition contained in the Code shall control.
16. Solvency and Security Interest. Buyer represents that Buyer is solvent. Buyer grants to Seller a security interest in the goods sold by Seller to Buyer to secure payment of the price and all other indebtedness now and hereinafter owing by Buyer to Seller. Buyer authorizes Seller to file a financing statement evidencing this security interest.
17. Safety Features. Buyer shall, and shall instruct any other end user to, operate the goods properly and in accordance with any safety device, warning or operating instructions provided by Seller.
18. Permits and Compliance. Seller is not responsible for obtaining any permit, inspection or license that is required for operation of the goods. Buyer shall be responsible for the compliance of the goods with all applicable laws, ordinances, regulations, codes and standards.
19. Intellectual Property and Confidentiality. All inventions (whether or not patentable), devices, technologies, ideas, improvements, processes, systems, software and other works and matters that Seller creates or develops in the course of Seller’s design, development or manufacture of the goods or performance of the services and all drawings and specifications that Seller provides to Buyer (“Intellectual Property”) shall be Seller’s sole property, and Buyer assigns, and agrees to assign, to Seller all right, title and interest that Buyer now has or in the future acquires in the Intellectual Property. Buyer shall not disclose or use any of the Intellectual Property or any information about Seller’s business, operations or activities, except to the extent necessary for Buyer to use the goods or services.
20. Period of Limitations. No claim, suit or other proceeding may be brought by Buyer for breach of contract, breach of warranty, or any other claim against Seller arising out of these terms or relating to the goods after one (1) year from the date the cause of action accrued.
21. Applicable Law; Venue. This agreement between shall be considered to have been made in the State of New Hampshire, and it shall be governed by and interpreted according to New Hampshire law, without regard to principles of conflicts of laws. Any action arising out of or relating to these terms may be brought in any federal or state court in New Hampshire having jurisdiction of the subject matter. Buyer irrevocably consents that any such court shall have personal jurisdiction over Buyer and waives any objection that the court is an inconvenient forum.
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