STANDARD TERMS AND CONDITIONS OF SALE
Prices do not include any applicable taxes. Advanced Thermoelectric Products, Inc. (ATP) will add taxes to the sales price where ATP is required by law to collect them, and will be paid by Buyer unless Buyer provides ATP with a tax-exemption certificate.
2. PRICES AND RELEASES:
Prices apply only if the quantity ordered is released within twelve (12) months
and shipments scheduled no more than eighteen (18) months from the date ATP received
Buyer's order. Otherwise, ATP's standard prices in effect on such release date for the
quantity actually shipped shall apply.
In the event of extraordinary increases in the market prices of fuels, metals,
raw materials, equipment and other production costs, ATP shall have the right and
Buyer shall have the obligation to renegotiate in good faith the price of the goods
hereunder not yet shipped, and if agreement is not reached, ATP shall have the right
to cancel this contract without liability.
3. TITLE AND DELIVERY:
Domestic shipments of goods within the U.S. shall be delivered F.O.B. shipping point.
Title and liability for loss or damage shall pass to Buyer upon ATP's tender of
delivery of the goods to a carrier for shipment to Buyer and any subsequent loss or
damage shall not relieve Buyer from any obligation.
Shipments of goods to destinations outside of the U.S. shall be delivered
"Ex Works" (EXW) at a named point of origin i.e. ex warehouse
(Nashua, NH). In this case, ATP agrees to place
the goods at the disposal of the buyer at the specified place on the date
or within the period fixed. Title and liability for loss or damage shall
pass to Buyer upon ATP's tender of delivery of the goods to a carrier for
shipment to Buyer and any subsequent loss or damage shall not relieve Buyer
from any obligation.
If ATP agrees to pre-pay charges for any shipment, Buyer shall reimburse ATP
for costs of insurance and transportation on such shipments and shall be
responsible for all import duties, taxes and any other expenses incurred
or licenses or clearances required at port of entry and destination.
ATP may deliver the goods in installments. Delivery dates are estimates.
ATP shall not be liable for any loss or expense (consequential or otherwise)
incurred by Buyer if ATP fails to meet the estimated delivery dates because
of unavoidable production or other delays.
4. TERMS AND METHOD OF PAYMENT:
Where ATP has extended credit to
Buyer the terms of payment shall be net thirty (30) days from date of
invoice. The amount of credit or terms of payment may be changed or credit
withdrawn by ATP at any time for any reason. If the goods are delivered in
installments, Buyer shall pay for each installment in accordance with the
terms of payment hereof. When Buyer fails to make each payment when it is
due, ATP reserves the right to withdraw credit and thereby suspend or
cancel performance under any or all purchase orders or agreements in which
ATP has extended credit to Buyer. ATP's suspension of performance may result
in a rescheduling delay contingent on current product availability.
If in ATP's judgment, Buyer's financial condition does not justify the
terms of payment specified herein, ATP may cancel this contract unless
Buyer shall immediately pay for all goods which have been delivered and
pay in advance for all goods to be delivered.
ATP is not liable, either wholly or in part,
for nonperformance or a delay in performance due to force majeure or
contingencies or causes beyond the reasonable control of ATP, including but
not limited to, shortage of labor, fuel, raw material or machinery or
technical or yield failure where ATP has exercised ordinary care in the
prevention thereof. ATP may allocate production and deliveries in a
reasonable manner in the event of shortage of goods.
6. CRITICAL APPLICATIONS:
Certain applications using
thermoelectric modules may invoke potential risks of death, personal injury
or severe property or environmental damage ("Critical Applications"). ATP
goods are not designed and are not warranted to be suitable
for use in life-support applications, devices or systems or other Critical
Applications. Use of ATP goods in such Critical Applications is understood
to be fully at the risk of Buyer.
AND RELATED REMEDIES:
THE FOLLOWING ARE IN LIEU OF
ALL CONDITIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT
NOT LIMITED TO, ANY IMPLIED CONDITIONS OR WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE AND OF ANY OTHER WARRANTY OBLIGATION ON
THE PART OF ATP.
ATP, except as otherwise provided below, warrants the goods against
faulty workmanship or the use of defective materials and warrants that the
goods conform to ATP's published specifications or other mutually
agreed upon written specifications on the date of shipment. Testing and
other quality control techniques are utilized to the extent ATP deems
necessary to support this warranty. Specific testing of all parameters of
each device is not necessarily performed, except those mandated by
government requirements. ATP warrants that at the time of delivery, ATP has
title to the goods free and clear of any and all liens and encumbrances.
These warranties are the only warranties made by ATP and can be amended
only by a written document signed by an ATP officer.
Continued use or possession of the goods after 30 days shall be
conclusive evidence that the warranty is fulfilled to the full satisfaction of Buyer.
ATP makes NO WARRANTY as to software products, which are supplied
"AS-IS", or as to experimental or developmental goods or goods not
manufactured by ATP. For goods not manufactured by ATP, ATP, to the extent
permitted by ATP's contract with its supplier, shall assign to Buyer any
rights ATP may have under any warranty of the supplier.
If ATP breaches its warranties as contained herein, ATP's sole, maximum
liability shall be (at ATP's option) to repair, replace, or credit Buyer's
account for any goods which are returned by Buyer during the applicable
30 day period set forth above, provided that (a) ATP is promptly notified
in writing upon discovery by Buyer that the goods failed to conform to
this contract with a detailed explanation of any alleged deficiencies,
AND a Return Authorization Number (RMA) is issued (b) the goods are
returned to ATP, Freight Pre-Paid (with ATP's RMA# clearly visible on the
outside of the package) to the ATP location from which goods were shipped, and (c) ATP's
examination of the goods shall disclose that such alleged deficiencies actually
exist and were not caused by accident, misuse, neglect, alteration, improper
installation, unauthorized repair or improper testing. If the goods fail to
conform to the warranty, ATP shall reimburse Buyer for the transportation
charges paid by Buyer for the goods. If ATP elects to repair or replace the goods,
ATP shall have a reasonable time to make the repair(s) or replacement. Such repair,
replacement or credit shall constitute fulfillment of all liability of ATP
to Buyer whether based in contract, tort, indemnity, statutory provision
ATP MAY PROVIDE TECHNICAL, APPLICATIONS OR DESIGN ADVICE, QUALITY
CHARACTERIZATION AND RELIABILITY DATA OR SERVICE IN CONNECTION WITH
BUYER’S ORDER. PROVIDING THESE ITEMS SHALL NOT EXPAND OR OTHERWISE AFFECT
ATP’S WARRANTIES SET FORTH ABOVE AND NO OBLIGATION OR LIABILITY SHALL ARISE
FROM ATP’S PROVISION OF SUCH ITEMS.
8. INTELLECTUAL PROPERTY:
THE SALE BY ATP OF THE GOODS ORDERED HEREUNDER DOES NOT GRANT TO,
CONVEY OR CONFER UPON BUYER OR BUYER'S CUSTOMERS, OR UPON ANYONE CLAIMING
UNDER BUYER, A LICENSE, EXPRESS OR IMPLIED, UNDER ANY PATENT RIGHT,
COPYRIGHT, MASK WORK RIGHT OR OTHER INTELLECTUAL PROPERTY RIGHT OF ATP
COVERING OR RELATING TO ANY COMBINATION, MACHINE OR PROCESS IN WHICH SAID
GOODS MIGHT BE OR ARE USED. THE FOREGOING STATES THE SOLE LIABILITY OF THE
PARTIES FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT AND IS IN LIEU OF
ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO.
9. LIMITATION AND
DISCLAIMER OF DAMAGES: If ATP breaches any
provisions of this contract other than its warranties as contained in
Section 7, ATP's sole liability shall not exceed the total contract price
specified herein less the purchase price for any items delivered and
accepted hereunder. Remedies for breach of warranty are limited to those
stated in Section 7.
IN NO EVENT SHALL ATP BE LIABLE TO ANYONE FOR SPECIAL, COLLATERAL,
INDIRECT, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH OF ANY
OF THE PROVISIONS OF THIS CONTRACT, SUCH DAMAGES TO INCLUDE BUT NOT BE
LIMITED TO, COSTS OF REWORK, RETESTING OR REMOVAL AND REINSTALLATION OF
GOODS, LOSS OF GOODWILL, LOSS OF PROFITS, OR LOSS OF USE.
10. TERMINATION AND CANCELLATION:
Buyer may terminate this contract in whole or, from time to time, in part
upon ninety (90) days' advance written notice for Standard Products and one
hundred eighty (180) days' advance written notice for Custom Products.
In such event Buyer and Seller may negotiate reasonable termination charges
for losses incurred by Seller.
12. NON-WAIVER OF DEFAULT:
In the event of any default by Buyer, ATP may decline to make further shipments.
If ATP elects to continue to make shipments, ATP's action shall not constitute a
waiver of any default by Buyer or in any way affect ATP's legal remedies for any
13. GOVERNING LAW:
The validity, performance and construction of this contract shall be governed by
the laws of the New Hampshire.
14. U.S. GOVERNMENT CONTRACTS:
If the goods are to be used in a U.S. Government contract or subcontract, those
mandatory clauses, except as noted below, of the applicable U.S. Government procurement
regulations shall be incorporated by reference. Unless otherwise agreed upon in writing,
certified cost or pricing data will not be provided and Cost Accounting Standards,
Defective Pricing, and Audit requirements will not apply.
This contract shall not be assignable by either party without the written consent
of the other party. Unauthorized assignment shall be void.
THIS CONTRACT CONSTITUTES THE ENTIRE AGREEMENT
BETWEEN THE PARTIES RELATING TO THE SALE OF THE GOODS DESCRIBED ON ANY ATP QUOTATION,
INVOICE OR STATEMENT AND SUPERSEDES ALL PREVIOUS COMMUNICATIONS, REPRESENTATIONS,
OR AGREEMENTS, EITHER ORAL OR WRITTEN, WITH RESPECT TO THE SUBJECT MATTER
HEREOF. NO REPRESENTATIONS OR STATEMENTS OF ANY KIND MADE BY ANY
REPRESENTATIVE OF ATP, WHICH ARE NOT STATED HEREIN, SHALL BE BINDING ON ATP.
NO ADDITION TO OR MODIFICATION OF ANY PROVISION UPON THE FACE OR REVERSE
OF THIS CONTRACT SHALL BE BINDING UPON ATP UNLESS MADE IN WRITING AND
SIGNED BY A DULY AUTHORIZED REPRESENTATIVE OF ATP. NO COURSE OF DEALING OR
USAGE OF TRADE OR COURSE OF PERFORMANCE SHALL BE RELEVANT TO EXPLAIN OR
SUPPLEMENT ANY TERM EXPRESSED IN THIS CONTRACT.
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