TERMS AND CONDITIONS OF SALE
1. AGREEMENTS AND ACCEPTANCE. These terms and conditions and the provisions on the reverse side hereof or in any agreement to which
these terms and conditions are attached or into which they are incorporated shall constitute the entire agreement (“Agreement”) between BUYER and Spectra-Tech Manufacturing, Inc. (“SPECTRA-TECH”) as to the sale of the goods sold pursuant hereto. No prior or other understandings or agreements shall be binding upon SPECTRA-TECH. No additions to or deletions or modifications of this Agreement proposed by BUYER in its printed forms or otherwise shall bind SPECTRA-TECH unless accepted by SPECTRA-TECH in writing. BUYER acknowledges that pre-printed terms and conditions on its purchase order form, if any, are void and shall not apply to its Order.
2. PRICES AND PAYMENT TERMS: Prices and payment terms are [F.O.B. SPECTRA-TECH’s facility in Batavia, Ohio,] and are subject to change
without notice at any time prior to SPECTRA-TECH’s acceptance of BUYER’s order. Unless otherwise specifically set forth on the face hereof, prices do not include any sales, use, transfer, excise or other taxes, tariffs or customs duties levied upon the sale, transfer, import or use of the goods sold hereunder, and BUYER will pay directly or reimburse SPECTRA-TECH for any such charges. SPECTRA-TECH’s invoices are payable only in United States currency. BUYER shall pay interest on overdue amounts at the rate of 1.5% per month, such interest to accrue from the due date thereof until paid.
3. DELIVERY AND RISK OF LOSS: Shipping dates are approximate dates only, and SPECTRA-TECH is not responsible for any delays or
nonperformance, including without limitation, those resulting from (a) delays in receipt of or changes in final specifications or instructions from BUYER or (b) force majeure, including, without limitation, strikes, labor disturbances, material shortages, nonperformance by subcontractors or suppliers or other abnormal manufacturing conditions, delays or failures of carriers or communications, fire, flood, storms, accident, riot, war or invasion, governmental requisitions or priorities, acts of God, or other causes beyond SPECTRA-TECH’s reasonable control. IN NO EVENT SHALL SPECTRA-TECH BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARISING OUT OF SUCH DELAY OR FAILURE TO DELIVER. All shipments hereunder shall be by truck, unless BUYER specifies other means of shipment and pays any additional cost thereof. BUYER shall bear all risk of loss after delivery to the carrier.
4. WARRANTIES AND DISCLAIMER: SPECTRA-TECH warrants that its products will be free from defects in workmanship and incorrect
placement of components for a period of 120 days from the date of shipment. BUYER’s exclusive remedy and SPECTRA-TECH’s sole liability under this warranty will be for SPECTRA-TECH, at its sole option and expense, to correct or replace the nonconforming or defective product, or to refund the purchase price. This warranty does not apply to: (i) any first articles, prototypes, pre-production units, test units of a product; (ii) any products which have been repaired by BUYER or a third party; (iii) any products which have been altered or modified in any way by BUYER or third party; or (iv) any products which have been subject to misuse, abnormal use or neglect. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS OR OTHER TERMS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TERMS AS TO QUALITY, FITNESS FOR PARTICULAR PURPOSE, MERCHANTABILITY OR OTHERWISE, WHETHER IMPLIED BY CUSTOM OR LAW. Without limiting the foregoing disclaimer, BUYER understands, acknowledges and agrees that SPECTRA-TECH does not warrant any parts, components or other materials used in the manufacture of the products.
5. LIMITATION OF LIABILITY: IN NO EVENT SHALL SPECTRA-TECH BE LIABLE TO BUYER FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE ARISING OUT OF OR RELATING TO THE MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR, REPLACEMENT, OR USE OF ANY PRODUCTS OR THE FURNISHING OF ANY SERVICE OR PART THEREOF, WHETHER SUCH LIABILITY IS BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAD BEEN WARNED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
6. CANCELLATION: Orders are not subject to cancellation or modification, in whole or in part, after SPECTRA-TECH’s acceptance, without
SPECTRA-TECH’s express written consent and payment of a cancellation charge in the amount of SPECTRA-TECH’s actual costs incurred for the order prior to the time of cancellation plus liquidated damages in the amount of 20% of the total price of the canceled order.
7. INDEMNIFICATION: BUYER shall comply with and require its agents and employees to comply with all directions, safety notices, warnings and
other instructions furnished by SPECTRA-TECH, and shall use and require its agents and employees to use reasonable care in the use of the products. If BUYER fails to observe the provisions of this section, or if any injury or damage is caused, in whole or in part, by BUYER’s failure to comply with applicable federal, state or local safety requirements, SPECTRA-TECH shall have no obligation to BUYER or any other person in respect thereof, and BUYER shall indemnify, defend and hold harmless SPECTRA-TECH against any claims, loss or expense for injury or damage arising directly or indirectly from any such failure. In addition, SPECTRA-TECH shall have no liability or responsibility with respect to any product supplied by BUYER or manufactured to BUYER’s design or specifications which infringes upon any United States or foreign patent, and BUYER will indemnify, defend and hold harmless SPECTRA-TECH from any such claim of infringement, including payment of SPECTRATECH’s attorneys’ fees. SPECTRA-TECH SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY ARISING OUT OF THE USE OF THE PRODUCTS SUPPLIED HEREUNDER OTHER THAN TO THE ORIGINAL BUYER AS PROVIDED ABOVE IN PARAGRAPH 4.
8. LIMITATION OF ACTIONS: Any action for breach of contract arising out of SPECTRA-TECH’s acceptance or performance of this Agreement or products supplied hereunder must be commenced within one (1) year after the cause of action accrues.
9. BUYER’S DEFAULT OR INSOLVENCY: SPECTRA-TECH shall have the right to cancel or suspend performance hereunder if BUYER is in
default in making timely payment or otherwise in default under this or any other contract between BUYER and SPECTRA-TECH or if any proceedings by or against BUYER are instituted or pending under any insolvency law or any provisions of the Federal Bankruptcy Code or in which the appointment of a receiver is sought for BUYER or any of its assets. BUYER will pay SPECTRA-TECH’s costs of collection of overdue amounts, including, but not limited to, attorneys’ fees and court costs.
10. INSTALLATION: This Agreement does not include installation of equipment or supervision of such installation by SPECTRA-TECH.
11. GOVERNING LAW; REMEDIES: No claim will be allowed for omissions or shortages unless made within thirty (30) days after receipt of the
applicable shipment by BUYER. SPECTRA-TECH shall, in addition to the rights and remedies herein set forth, be entitled to all rights and remedies provided by the Uniform Commercial Code, as amended from time to time, and other applicable law and at equity. The rights and obligations of the parties hereto and the construction and effect of any contract formed pursuant hereto shall be governed by the laws of the State of Ohio without reference to choice of law doctrine. Any action arising inconnection with this Agreement shall be filed only in a state or federal court of competent jurisdiction located in or having a division that includes Clermont County,Ohio.