Terms and Conditions of Sale
1. Parties, the Goods, and Contractual Documents. Stratonics, Inc. is hereinafter referred to in these Terms and Conditions of Sale (“Terms”) as “Seller” and the customer or person or entity purchasing services, goods, or products (collectively referred to as “Goods”) from Seller is referred to as “Buyer.” Buyer acknowledges to Seller that these Terms, along with any attachment, price list, schedule, quotation, acknowledgment, or invoice from Seller relevant to the sale of the Goods (collectively, “Attachment”), and all documents incorporated by specific reference into these Terms or any Attachment, constitute the complete and exclusive statement of the terms of the agreement governing all sales of the Goods by Seller to Buyer (“Agreement”), regardless of whether or not Buyer or Seller expressly make reference to these Terms in any documentation related to any such sale. Buyer’s acceptance of the Goods will manifest Buyer’s assent to these Terms without variance or addition. Seller hereby objects to and rejects any terms in Buyer’s purchase order or other Buyer documents that are different than or in addition to these Terms, and such terms shall not constitute any part of the agreement between Buyer and Seller. Any Attachment is incorporated herein by reference. Seller reserves the right in its sole discretion to refuse orders.
2. Price. Unless a fixed price for a period of time is quoted in writing, the price of the Goods are subject to change without notice and the prices invoiced will be those in effect at the time of shipment and/or delivery of the Goods. Prices are also subject to adjustments for changes in prices of raw materials. Any current or future tax or any charge of any nature imposed by any governmental or taxing authority that is or becomes payable by reason of the production, transportation, sale, storage, processing, use, consumption or delivery of any Goods sold to Buyer, other than taxes based on Seller’s net income or profit, will be for Buyer’s account and will either be added to the price of the Goods (unless Buyer provides Seller with an exemption certificate acceptable to the applicable taxing authority or authorities) and paid for by Buyer or billed to Buyer separately (unless Buyer provides Seller with an exemption certificate acceptable to the applicable taxing authority or authorities) and paid for by Buyer, as Seller may elect in its sole discretion.
3. Terms of Payment. Unless otherwise specified by Seller, terms are net ten (10) days from the date of Seller’s invoice in U.S. currency. Seller has the right, among other remedies, either to terminate this Agreement and/or any purchase order with Buyer or to suspend further performance under this Agreement, any other agreement, and/or any purchase order with Buyer, which other agreement(s) and/or purchase order(s) Buyer and Seller hereby amend accordingly to incorporate these Terms, in the event Seller fails to receive any payment when due or if Seller otherwise deems itself insecure. Buyer shall be liable for all expenses, including attorneys’ fees and other litigation costs, relating to the collection of any past due amount. In the event Buyer fails to make any payment to Seller when due, Buyer’s entire account(s) with Seller shall become immediately due and payable without notice or demand by Seller. Any payment owed to Seller that is not paid when due shall bear interest at a rate equal to the lesser of 1.5% per month or the maximum rate permitted by law, accruing on the date on which the payment is due until the date on which the payment is paid. Should Buyer’s financial responsibility become unsatisfactory to Seller, Seller may require cash payment, cash payments, or security (including, without limitation, letters of credit) from Buyer, satisfactory to Seller, for any future delivery and for any Goods delivered up to that point. If such cash payment or security is not provided, in addition to Seller’s other rights and remedies, Seller may discontinue any delivery. Buyer hereby grants Seller a purchase money security interest in all Goods sold to Buyer by Seller, which security interest shall continue until such Goods are fully paid for in cash, and Buyer: (a) upon Seller’s demand, will execute and deliver to Seller such instruments as Seller requests to protect and perfect such security interest, and (b) authorizes Seller to execute and file such instruments as are necessary or useful to protect and perfect such interest. No Goods furnished by Seller to Buyer shall become a fixture as a result of such Goods being attached to realty.
4. Shipment and Delivery. Unless otherwise expressly provided in writing, shipments are made F.O.B. Seller’s warehouse of origin. Risk of loss or damage and responsibility shall pass from Seller to Buyer upon delivery to and receipt by a carrier. Any claim for shortage or damage suffered in transit is the sole responsibility of Buyer and shall be submitted by Buyer directly to the carrier. Any shortage or damage must be acknowledged and signed for at the time of delivery. While Seller will use all reasonable commercial efforts to maintain the delivery date(s) acknowledged or quoted by Seller, all shipping dates are approximate and not guaranteed. Seller reserves the right to make partial shipments and to place certain orders on “back order.” Seller, at its option, shall not be bound to tender delivery of any Goods for which Buyer has not provided shipping instructions. If Seller is to pay freight, Seller shall have the right to designate routing and means of transportation; and if Buyer requires a more expensive routing and/or means, Buyer will pay any extra cost involved. The cost of any special packing or special handling as a result of Buyer’s requirements shall be added to the amount of the order of the applicable Goods. If the shipment of the Goods is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any handling and storage costs and other additional expenses resulting therefrom. Any claim for shipping error, lost shipment or any other discrepancy (other than shortage or damage, which must be acknowledged and signed for at the time of delivery) must be made within thirty (30) days after delivery to the carrier or such claim will be disallowed and deemed waived.
5. LIMITED WARRANTY; NO OTHER WARRANTIES. Seller warrants for a period of one (1) year after product delivery that the Goods will be free from manufacturing defects. This warranty shall be void if Buyer fails to follow the instructions and procedures accompanied with the Goods or if Buyer modifies the Goods in any way. EXCEPT AS PROVIDED IN THIS SECTION 5, SELLER MAKES NO EXPRESSED OR IMPLIED WARRANTY WHATSOEVER. EXCEPT AS PROVIDED IN THIS SECTION 5, SELLER HEREBY DISCLAIMS ALL EXPRESSED OR IMPLIED WARRANTIES, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS OR FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCE, AND IN NO EVENT, WILL SELLER BE LIABLE FOR PERSONAL INJURY OR PROPERTY DAMAGE OR ANY OTHER LOSS, DAMAGE, COST OF REPAIR OR INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR LIQUIDATED DAMAGES OF ANY KIND, WHETHER BASED UPON WARRANTY, CONTRACT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION ARISING IN CONNECTION WITH THE DESIGN, MANUFACTURE, SALE, TRANSPORTATION, INSTALLATION, USE OR REPAIR OF THE GOODS SOLD BY SELLER. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT UNDER NO CIRCUMSTANCE, AND IN NO EVENT, SHALL SELLER’S LIABILITY, IF ANY, EXCEED THE NET SALES PRICE OF THE DEFECTIVE GOOD(S); NO ADDITIONAL ALLOWANCE SHALL BE MADE FOR THE LABOR OR EXPENSE OF REPAIRING OR REPLACING DEFECTIVE GOODS OR WORKMANSHIP OR DAMAGE RESULTING FROM THE SAME. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5, ALL GOODS PROVIDED BY SELLER AND ITS EMPLOYEES AND AGENTS ARE PROVIDED “AS IS,” “WHERE IS,” AND “WITH ALL FAULTS.”
6. LIMITATION OF LIABILITY. SELLER SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT, OR OTHERWISE), AND IN NO EVENT SHALL SELLER’S LIABILITY TO BUYER AND/OR ITS BUYER(S) EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC GOODS OR PORTION OF THE GOODS PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION, AND BUYER SHALL INDEMNIFY SELLER FOR ANY DAMAGES IN EXCESS THEREOF. IN NO EVENT SHALL SELLER’S LIABILITY TO BUYER AND/OR ITS BUYER(S) EXTEND TO INCLUDE INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, ALL OF WHICH ARE WAIVED BY BUYER AND AS TO WHICH BUYER SHALL INDEMNIFY SELLER. FURTHER, BUYER SHALL INDEMNIFY AND HOLD SELLER HARMLESS FROM ANY LIABILITY TO BUYER, BUYER’S EMPLOYEES, WORKERS, CONTRACTORS OR ANY OTHER PERSONS ARISING OUT OF BUYER’S, OR ANY OTHER PERSON’S, USE OF THE GOODS. The term “consequential damages” as used in these Terms includes, but is not limited to, all fines, penalties, loss of actual or anticipated profits, business interruption, loss of use of revenue, loss of business, loss of savings, cost of capital, loss or damage to property or equipment, loss of reputation, or illness. It is further expected that all instructions and warnings supplied by Seller will be passed on to all persons who use the Goods. Seller’s Goods are to be used in their recommended applications and all warning labels adhered to.
7. Contingencies. Seller shall not be held responsible for or be liable for any nonperformance or any default or delay in performance if caused, directly or indirectly, by any act of God, war, fire, the elements, riot, civil commotion, strike, lock-out, slow down, picketing or other labor controversy, accident, delay or default of or failure by any carrier, shortage of labor, delay in obtaining or inability to obtain any material, equipment or part from any regular source, action, request or regulation of or by any government or governmental authority, failure of any party to perform any contract with Seller, the performance of which is required for production of the Goods, or any other happening or contingency beyond Seller’s reasonable control, or without Seller’s fault, whether similar or dissimilar to the foregoing. Any delivery or other performance may be suspended for an appropriate period of time or canceled by Seller upon notice to Buyer in the event of the foregoing, but the balance of this Agreement shall otherwise remain unaffected. If Seller determines that its ability to supply the total demand for the Goods, or to obtain material used directly or indirectly in the manufacture of the Goods, is hindered, limited or made impracticable due to any cause set forth herein, Seller may allocate its available supply of the Goods or such material (without obligation to acquire any other supply of any such Goods or material) among itself and its purchasers on such basis as Seller determines to be equitable without liability for any failure of performance that may result therefrom.
8. Cancellation. Buyer may cancel any order only upon reasonable advance written notice and upon payment to Seller of Seller’s cancellation charges that include, among other things, all costs and expenses incurred to cover commitments made by Seller and a reasonable profit. Seller’s determination of the reasonableness of advance written notice and of such termination charges shall be conclusive.
9. Assignment. Buyer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of Seller, and any such assignment, without such consent, is void.
10. Acceptance of the Goods by Buyer. Upon receipt of the Goods, Buyer shall have ten (10) calendar days to inspect such Goods and notify Seller of any issue or defect. If Buyer does not inform Seller of any issue with, or defect in, the Goods within such ten (10) calendar day period, Buyer shall be deemed to have unconditionally accepted the Goods, thereby waiving all future claims regarding such Goods including, without limitation, that of condition or conformance.
11. Indemnification. Except as particularly specified and agreed upon in writing by Seller, Seller makes no covenant, warranty or representation that the Goods will conform to any federal, state or local laws, ordinances, regulations, codes or standards. Seller shall not be responsible for any loss or damage sustained by any party as a result of improper installation, use or storage of the Goods. Buyer shall defend, indemnify and hold harmless Seller and its directors, officers, employees, shareholders, subsidiaries, affiliates and agents against any loss, damage, claim, suit, liability, judgment or expense (including, without limitation, attorney’s fees) arising out of or in connection with any injury to, damage to, death to or loss of any persons or property, or violation of any applicable laws or regulations resulting from or in connection with the sale, transportation, installation, use, or repair of the Goods by Buyer.
12. U.S. Government Contracts. If any purchase order is issued pursuant to a U.S. Government prime or subcontract, these Terms are hereby modified as required to include such terms and conditions of the Federal Acquisition Regulations in effect as of the date of the purchase order and only as directly applicable based on value of the purchase order.
13. No License Conferred in the Goods. The purchase of the Goods from Seller confers no license, express or implied, under any patent, copyright, know-how, or technology, except in the case of any wholesaler for resale to its customers and for any manufacturer for use in its products.
14. Orders; Patent Infringement. No order is binding on Seller until accepted in writing by an authorized employee of Seller. The Goods manufactured to Buyer’s drawings, illustrations, negatives, litho positives, dimensions, specifications, designs, plans, computations, and descriptions are executed only with the understanding that Buyer will indemnify and hold harmless Seller from all damages sustained by Seller, including, without limitation, reasonable attorney’s fees, resulting from any action or threatened action against Seller for (i) infringement of any patent or proprietary right of any other person or entity, or (ii) injury to person or property, including death, relating to any defect in Buyer’s drawings, illustrations, negatives, litho positives, dimensions, specifications, designs, plans, computations, and descriptions.
15. Documentation. Seller shall provide Buyer with that data/documentation that is specifically identified in Seller’s quotation. If additional copies of data/documentation are to be provided by Seller, such copies shall be provided to Buyer at Seller’s applicable prices then in effect.
16. U.S. Export Control Regulations. All Goods sold to Buyer by Seller hereunder are subject to U.S. Export Control Laws. Buyer hereby agrees not to re-sell or divert any Goods contrary to such laws.
17. Non-waiver. No waiver by Seller with respect to any breach or default of any right or remedy, and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default of any other right or remedy, unless such waiver be expressed in writing and signed by Seller.
18. Set-off. Buyer shall not be entitled to set-off any amount due Buyer against any amount due Seller in connection with this Agreement.
19. Severability. If any provision of this Agreement is held to be invalid or unenforceable, all other provisions shall nevertheless continue in full force and effect.
20. Ownership of Drawings, Patents and Other Property. Unless otherwise specifically agreed to in writing by Seller, Buyer shall not copy or disclose to any other person or use for any other purpose, without Seller’s prior written consent, any drawing, illustration, negative, litho positive, dimension, specification, performance projection, design, plan, computation, or description prepared by Seller in connection with any work quotation or contract, whether of any product or general engineering or other arrangement, prepared by Seller. All drawings, illustrations, negatives, litho positives, dimensions, specifications, performance projections, designs, plans, computations, or descriptions prepared by Seller in connection with any work quotation or contract, whether of any product or general engineering or other arrangement, prepared by Seller, are Seller’s property.
21. Governing Law. These Terms shall be governed by and construed and interpreted in accordance with the laws of the State of Ohio, without regard to its conflict of law principles. Buyer and Seller agree that the proper venue for all actions arising in connection with these Terms shall be deemed exclusively proper only in state court in Montgomery County, Ohio, or in the federal court for the Southern District of Ohio, and the parties agree to submit to such jurisdiction. Any action, regardless of form, arising out of any transaction relating to these Terms or any other theory of recovery, shall be brought within the applicable statutory period, but in no event later than one (1) year of the date of tender of delivery of the applicable Goods except that any action by Seller for payment hereunder may be brought within five (5) years of the date of delivery of the applicable Goods. Further, the United Nations Convention on the International Sale of Goods (1980) (as amended from time to time) shall not apply to these Terms or any transaction relating to these Terms.
22. Cooperation. Buyer agrees to cooperate with Seller in connection with Seller’s performance hereunder by providing (i) timely responses to Seller’s inquiries and requests for approvals and authorizations, (ii) access to any information or materials reasonably requested by Seller which are necessary or useful as determined by Seller in connection with providing the Services, including, without limitation, physical and computer access to Buyer’s computer systems, and (iii) all required consents necessary for Seller to provide the Goods. Buyer acknowledges and agrees that Seller’s performance is dependent upon the completeness and accuracy of information provided by Buyer and the knowledge and cooperation of the agents, employees or subcontractors engaged or appointed by Buyer who are selected by Buyer to work with Seller.
23. Miscellaneous. All rights and remedies of Seller in these Terms are in addition to, and not lieu of, any rights or remedies that Seller may have at law or in equity. These Terms supersede all other prior communications, negotiations and statements, oral or written, regarding the subject matter of these Terms. No change, modification, rescission, discharge, abandonment, or waiver of these Terms shall be binding upon Seller unless made in writing and signed on its behalf by its duly authorized representative. No condition, usage or trade, course of dealing or performance, understanding, or agreement purporting to modify, vary, explain, or supplement these Terms shall be binding unless hereafter made in writing and signed by Seller. No modification shall be affected by Seller’s receipt or acceptance of any purchase order, shipping instruction form, or other documentation of Buyer containing any term at variance with or in addition to these Terms, all of which are objected to by Seller. All typographical or clerical errors made by Seller in any quotation, acknowledgment or publication are subject to correction. These Terms shall not be construed against the party preparing them, but shall be construed as if all parties jointly prepared these terms and any uncertainty or ambiguity shall not be interpreted against any one party. All rights and remedies of Seller in these Terms are to survive termination of this Agreement.