XMA Corporation (hereinafter referred to as “SELLER”)
“BUYER” whose name and address appears on the attached Sales Order, hereby agrees to be bound by the terms and conditions for sale of goods specified herein or on attachments specifically incorporated herein by reference. These terms and conditions apply to any sale of products from Seller to Buyer. If terms or conditions other than those included herein become a matter of disagreement or conflict then these terms and conditions specified herein shall prevail. These terms and conditions shall be binding on any purchaser of XMA products that are subject to a Sales Order and are hereby incorporated into each Sales Order by reference.
- Acceptance — ALL SALES ARE SUBJECT TO AND EXPRESSLY CONDITIONED UPON THE TERMS AND CONDITIONS CONTAINED HEREIN, AND UPON BUYER’S ASSENT THERETO. NO VARIATION OF THESE TERMS AND CONDITIONS WILL BE BINDING UPON SELLER UNLESS AGREED TO IN WRITING AND SIGNED BY AN OFFICER OR OTHER AUTHORIZED REPRESENTATIVE OF SELLER.
- Changes — Orders arising hereunder may be changed or amended only by written agreement signed by both Buyer and Seller, setting forth the particular changes to be made and the effect, if any, of such changes on the price and time of delivery. Buyer may not cancel this order unless such cancellation is expressly agreed to in writing by Seller. In such event, Seller will advise Buyer of the total charge for such cancellation, and Buyer agrees to pay such charges, including, but not limited to, storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs imposed on Seller by its suppliers, and any other cost resulting from cancellation of this order by Buyer which is permitted by Seller. Certification of such costs by Seller’s independent public accountants shall be conclusive on the parties hereto.
- Delivery, claims, delays — All sales are F.O.B. Origin unless otherwise noted Seller reserves the right to select the Country of Origin unless otherwise requested at the time of quotation or order. If shipping and handling charges are quoted or invoiced, they will include charges in addition to actual freight costs. Delivery of the goods to the carrier at Seller’s shipping point shall constitute delivery to Buyer and Buyer shall bear all risk of loss or damage in transit. Seller reserves the right, in its discretion, to determine the exact method of shipment. Seller reserves the right to make delivery in installments, all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of Buyer’s obligations to accept remaining deliveries. Immediately upon Buyer’s receipt of any goods shipped hereunder, Buyer shall inspect the same and shall notify Seller in writing of any claims for shortages, defects or damages and shall hold the goods for Seller’s written instructions concerning disposition. If Buyer shall fail to so notify Seller within five days after the goods have been received by Buyer, such goods shall conclusively be deemed to conform to the terms and conditions hereof and to have been irrevocably accepted by the Buyer. Seller shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond Seller’s reasonable control, including, without limitation, unsuccessful reactions, act of Buyer, embargo or other governmental act, regulation or request affecting the conduct of Seller’s business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labor difficulties, lightning, flood, windstorm or other acts of God, delay in transportation, or inability to obtain necessary labor, fuel, materials, supplies or power at current prices.
- Allocation of goods — If Seller is unable for any reason to supply the total demands for goods specified in Buyer’s order, Seller may allocate its viable supply among any or all Buyers on such basis as Seller may deem fair and practical, without liability for any failure of performance which may result therefrom.
- Payment — Terms of sale are net 30 days of date of invoice as stated on the Sales Order, unless otherwise stated. Seller may impose a 1 & ½% per month late charge (compounded) for any payments after thirty (30) days. If the financial condition of Buyer results in the insecurity of Seller, in its sole and unfettered discretion, as to the ultimate collectability of the purchase price, Seller may, without notice to Buyer, terminate, delay or postpone the delivery of the products; and Seller, at its option, is authorized to change the terms of payment to payment in full or in part in advance of shipment of the entire undelivered balance of said products. In the event of default by Buyer in the payment of the purchase price or otherwise, of this or any other order, Seller, at its option, without prejudice to any other of Seller’s lawful remedies, may defer delivery, cancel this Contract, or sell any undelivered products on hand for the account of Buyer and apply such proceeds as a credit, without set-off or deduction of any kind, against the contract purchase price, and Buyer agrees to pay the balance then due to Seller on demand. Buyer agrees to pay all costs, including, but not limited to, reasonable attorney and accounting fees and other expenses of collection resulting from any default by Buyer in any of the terms hereof.
- Taxes and other charges — Any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between Seller and Buyer shall be paid by Buyer in addition to the prices quoted or invoiced. In the event Seller is required to pay any such tax, fee or charge, Buyer shall reimburse Seller therefore; or, in lieu of such payment, Buyer shall provide Seller at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
- Pricing; Pricing changes based on increased component cost — Prices shown in the Sales Order are in currency of the United States of America and are subject to change. Prices in the Sales Order are guaranteed for 60 days. Notwithstanding any provision to the contrary contained herein, if, prior to delivery by Seller, the cost to Seller of any component to be incorporated in the products (the cost of the component to include and brokers’ or finders’ fees or other costs associated with acquiring the component) (hereafter collectively referred to as “the component cost”), is increased from the prevailing market price of such component at the time this Sales Order is entered into, the Buyer agrees that the price of the products shall be increased by the amount of 110% of the additional component cost incurred by Seller in order to acquire such component for incorporation into the products.
- Warranties — Seller warrants that its products shall conform to the description of such products as provided to Buyer by Seller through Seller’s catalog, analytical data or other literature. THIS WARRANTY IS EXCLUSIVE, AND SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Seller’s warranties made in connection with this sale shall not be effective if Seller has determined, in its sole discretion, that Buyer has misused the products in any manner, has failed to use the products in accordance with industry standards and practices, or has failed to use the products in accordance with instructions, if any, furnished by Seller. Seller’s sole and exclusive liability and Buyer’s exclusive remedy with respect to products proved to Seller’s satisfaction to be defective or nonconforming shall be replacement of such products without charge or refund of the purchase price, in Seller’s sole discretion, upon the return of such products in accordance with Seller’s instructions. SELLER SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, LOSS OF PRODUCTS OF BUYER OR OTHER USE OR ANY LIABILITY OF BUYER TO A THIRD PARTY ON ACCOUNT OF SUCH LOSS, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT INCLUDING PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY SELLER’S GROSS NEGLIGENCE. All claims must be brought within one (1) year of shipment, regardless of their nature.
- Buyer’s Representations and Indemnity — Buyer represents and warrants that it shall use all products ordered herein in accordance with Paragraph No. 8 and that any such use of products will not violate any law or regulation. Buyer agrees to indemnify and hold harmless Seller, its employees, agents, successors, officers, and assigns, from and against any suits, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that Seller may sustain or incur as a result of any claim against Seller based upon negligence, breach of warranty, strict liability in tort, contract, or any other theory of law brought by Buyer, its officers, agents, employees, successors or assigns, by Buyer’s customers, by end users, by auxiliary personnel (such as freight handlers, etc.) or by other third parties, arising out of, directly or indirectly, the use of Seller’s products, or by reason of Buyer’s failure to perform its obligations contained herein. Buyer shall notify Seller in writing within fifteen (15) days of Buyer’s receipt of knowledge of any accident, or incident involving Seller’s products which results in personal injury or damage to property, and Buyer shall fully cooperate with Seller in the investigation and determination of the cause of such accident and shall make available to Seller all statements, reports and tests made by Buyer or made available to Buyer by others. The furnishing of such information to Seller and any investigation by Seller of such information or incident report shall not in any way constitute any assumption of any liability for such accident or incident by Seller. 10. Product design and ownership; engineering charges. Engineering charges represent the cost of taking Seller’s existing technology and product database and adapting these to meet customer special needs. All resulting product designs and technology is exclusively the property of Seller and cannot be disclosed to or manufactured by other third parties without expressed agreement of Seller, who retains exclusive ownership of (or rights to) all contributing technology, data, intellectual property rights, database and other property and information (here after referred to as “Intellectual Property”). Engineering charges are billable upon customer approval of the design (if required) and release of the design to Manufacturing.
- Patent disclaimer — Seller does not warrant that the use or sale of the products delivered under will not infringe the claims of any United States or other patents covering the product itself or the use thereof in combination with other products or in the operation of any process. Technical Assistance — At Buyer’s request, Seller may, at Seller’s discretion, furnish technical assistance and information with respect to Seller’s products. SELLER MAKES NO WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO TECHNICAL ASSISTANCE OR INFORMATION PROVIDED BY SELLER OR SELLER’S PERSONNEL. ANY SUGGESTIONS BY SELLER REGARDING USE, SELECTION, APPLICATION OR SUITABILITY OF THE PRODUCTS SHALL NOT BE CONSTRUED AS AN EXPRESS WARRANTY UNLESS SPECIFICALLY DESIGNATED AS SUCH IN A WRITING SIGNED BY AN OFFICER OR OTHER AUTHORIZED REPRESENTATIVE OF SELLER. Miscellaneous — Seller’s failure to strictly enforce any term or condition of this order or to exercise any right arising hereunder shall not constitute a waiver of Seller’s right to strictly enforce such terms or conditions or exercise such right thereafter. All rights and remedies under this order are cumulative and are in addition to any other rights and remedies Seller may have at law or in equity. Any waiver of a default by Buyer hereunder shall be in writing and shall not operate as a waiver of any other default or of the same default thereafter. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. The paragraph headings herein are for convenience only; they form no part of the terms and conditions and shall not affect their interpretation. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, successors and assigns.
- Governing Law — All disputes as to the legality, interpretation, application, or performance of this order or any of its terms and conditions shall be governed by the laws of the State of New Hampshire, United States of America including its conflict of laws principles. Buyer and Seller hereby specifically opt out of the Convention for the International Sale of Goods (CISG). Each party to this order agrees that any dispute arising between them which results in either party instituting court proceedings shall be litigated in either the Federal District Court for the District of New Hampshire or the Superior Court in Hillsborough County, New Hampshire.
- Export Compliance — Seller’s products are subject to US export laws, rules, treaties, regulations, and international agreements. All individuals who access Seller’s website or purchase Seller’s products or services assume the responsibility of abiding by the US export laws, rules, treaties, regulations, and international agreements along with applicable foreign laws when transferring, selling, importing, exporting, re-exporting, deemed exporting, diverting, or otherwise disposing of such products, programs, and services. By reviewing Seller’s terms and conditions and/or by purchasing Seller’s products or services and or by ordering off of Seller’s website, the Buyer represents and warrants that neither it, nor any of its principles, officers, directors or equivalent are in a sanctioned country nor is Buyer an individual or entity whose access to Seller’s products, services or website is restricted by US export laws, rules, treaties, regulations, and international agreements. Termination. If Buyer violates, or is officially charged with a violation of any law, regulation or ordinance which may govern the sale, handling or disposition of any of the products or if Buyer becomes insolvent, or makes any assignment for the benefit of creditors, or is adjudged bankrupt, or if a receiver or trustee of Buyer’s property is appointed Seller may, at its sole discretion, terminate this contract and may refuse to make any further deliveries.