1.
Parties.
Daytronic Corporation will be referred to as "Seller" and
the person or company purchasing as indicated on the front hereof will be
referred to as "Buyer."
2.
Buyer’s Assent to Terms and
Conditions. (a) Seller hereby
objects to and rejects any and all different or additional terms or conditions
contained in any order submitted to Seller by or on behalf of Buyer unless
specifically agreed to in a writing signed by an officer of Seller.
Under no other circumstances are any such different or additional terms
to be considered a part of this Agreement.
(b) No representative or agent of Seller has any authority to make any
different or additional representations or warranties on behalf of Seller.
(c) Until Seller issues a new quotation, the terms and conditions hereof
shall govern all sales of goods of the type described on the face hereof by
Seller to Buyer regardless of whether the price of such goods changes or Buyer
orders such goods in excess of the quantity specified in this Agreement.
3.
Price Adjustments.
The prices stated herein do not include any sales, use, or other taxes
unless so stated specifically. Such
taxes will be added to invoice prices in those instances in which Seller is
required to collect them from Buyer; provided, however, that if Seller does not
collect any such taxes and is later asked by or required to pay such to any
taxing authority, Buyer will make such payment to Seller or, if requested by
Seller, directly to such taxing authority.
At Seller's option, prices may be adjusted to reflect any increase in the
costs of Seller resulting from state, federal, or local
legislation, or any change in the rate charge or classification of any
carrier.
4.
Payment: Title and Risk: Shipment.*
Unless otherwise specified by Seller, all prices are F.O.B. Seller's
factory or warehouse from which shipment is made.
Terms of sale are Net 30 Days for accounts having established credit.
Other shipments are made C.O.D., subject to Seller's Credit Department
approval. Regardless of the manner
of shipment, title to any products described on the front hereof and risk of
loss or damage thereto shall pass to Buyer upon tender to the carrier at the
factory or warehouse of Seller, except in those instances in which delivery is
made by Seller's vehicles. No
deferment of shipment at Buyer's request beyond the respective dates indicated
will be made except on terms that will indemnify Seller against all loss and
additional expense, including, but not limited to demurrage, handling, storage,
and insurance charges.
The
price is payable net thirty (30) days. Interest
shall be paid on demand on past due amounts at the rate of two percent (2%) per
month or the highest lawful rate, whichever is less.
Buyer
hereby submits to the jurisdiction of the state and federal courts for the State
of Ohio, county of Montgomery, and said courts shall have exclusive jurisdiction
and venue to adjudicate the rights and obligations of the parties relating in
any manner to this Agreement. Buyer
hereby designates the Secretary of State of Ohio as an authorized agent to
accept service or process for Buyer in the State of Ohio.
*
ALL credit terms are subject to Seller’s Credit Department approval.
5.
Warranty and Limitations of
Liability. Seller warrants its
products to be free from defects in material and workmanship, under normal and
proper use in accordance with instructions of Seller, for a period of one year
from the date of delivery to Buyer. Seller's
liability under such warranty or in connection with any other claim relating to
the products shall be limited to, at Seller's option, the repair or replacement
of any products or parts or components thereof which are returned to Seller
freight prepaid and which are defective in material or workmanship, or the
refund of the purchase price to Buyer.
This
warranty is not intended to cover consumer products, as defined in the
Magnuson-Moss warranty—Federal Trade Commission Improvement Act, 15 U.S.C.
§§ 2301-12, which are purchased by Buyer for purposes other than resale.
If Buyer is not intending to resell the products, and if the products are
consumer products as defined in the Magnuson-Moss Act, the foregoing warranty,
but not the limitation of Seller's liability, shall be null and void.
EXCEPT
AS EXPRESSLY STATED ABOVE, SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, WHETHER
OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OR OTHERWISE ON
THE PRODUCTS, OR ON ANY PARTS OR LABOR FURNISHED DURING THE SALE, DELIVERY, OR
SERVICING OF THE PRODUCTS. IN NO
EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES ARISING OUT OF, OR AS THE RESULT OF, THE SALE, DELIVERY,
SERVICING, USE, OR LOSS OF USE OF THE PRODUCTS OR ANY PART THEREOF, OR FOR ANY
CHARGES OR EXPENSES OF ANY NATURE INCURRED WITHOUT SELLER'S WRITTEN CONSENT,
EVEN THOUGH SELLER HAS BEEN NEGLIGENT. IN
NO EVENT SHALL SELLER'S LIABILITY UNDER ANY CLAIM MADE BY BUYER EXCEED THE
PURCHASE PRICE OF THE PRODUCTS IN RESPECT OF WHICH DAMAGES ARE CLAIMED.
See also Product Warranty and Repair.
6.
Claims: Commencement of Actions.
No claims for shortages will be allowed unless such shortages are
reported to Seller within 10 days after delivery.
No other claims against Seller will be allowed unless asserted in writing
within 60 days after delivery or, in the case of an alleged breach of warranty,
within 60 days after the date within the warranty period on which the defect is
or should have been discovered by Buyer.
Any
lawsuit or other action based upon breach of this contract or upon any other
claim arising out of this sale (other than an action by Seller for the purchase
price) must be commenced within one year from the date of the tender of delivery
by Seller or, in the case of a cause of action based upon an alleged breach of
warranty, within one year from the date within the warranty period on which the
defect is or should have been discovered by Buyer.
7.
Contingencies. Seller shall not be liable for any default or delay in
performance if caused, directly or indirectly, by acts of God; war; force of
arms; fire; the elements; riot; labor disputes; picketing or other labor
controversies; sabotage; civil commotion; accidents; any governmental action,
prohibition, or regulation; delay in transportation facilities; shortage or
breakdown of or inability to obtain or non-arrival of any labor, material, or
equipment used in the manufacture of the products covered hereby; failure of any
party to perform any contract with Seller relative to the production of the
products covered hereby; or from any cause whatsoever beyond Seller's control,
whether or not such cause be similar or dissimilar to those enumerated.
Seller shall promptly notify Buyer of the happening of any such
contingency and of the contemplated effect thereof on the manufacture and
delivery of the products.
8.
Loss to Buyer's Property: Patent,
Trademark, or Copyright Infringement, Etc.
Seller shall not be liable for, and shall have no duty to provide
insurance against, any damage or loss to any goods or materials of Buyer which
are used by Seller in connection with this order. Where any product is manufactured from patterns, plans,
drawings, or specifications furnished by Buyer, Buyer shall indemnify Seller
against and save harmless Seller from all loss, damage, and expense arising out
of any suit or claim against Seller for infringement of any patent, trademark,
or copyright because of Seller's manufacture of such product or because of the
use or sale of such product by any person.
At Seller's option, upon receipt from Seller of written notice of any
such suit or claim, Buyer shall appear in and assume the defense of the
litigation.
9.
Seller's Specifications, Technical
Data, Etc. Any specifications,
drawings, plans, notes, instructions, engineering notices, or technical data of
Seller furnished to Buyer shall be deemed to be incorporated herein by reference
the same as if fully set forth. Seller
shall at all times retain title to all such documents and Buyer shall not
disclose such to any party other than Seller or a party duly authorized by
Seller. Upon Seller's request,
Buyer shall promptly return to Seller all such documents and copies thereof.
10.
Buyer's Obligation: Rights of
Seller. If Seller shall at any
time doubt Buyer's financial responsibility, Seller may decline to make
shipments hereunder except upon receipt of cash payment in advance or security
or other proof of responsibility satisfactory to Seller. If Buyer fails in any way to fulfill the terms and conditions
on the front or the back hereof, Seller may defer further shipments until such
default is corrected. Remedies
provided herein shall be in addition to, and not in lieu of, other remedies.
11.
Cancellations. Daytronic Corporation may, at its sole discretion, agree
to cancellation of an order or the restocking of goods shipped to a customer, if
goods are in as-new condition and original packing materials are intact.
In such event, the following minimum charges shall apply:
a.
Cancellation Charges: If
cancelled more than two weeks prior to scheduled shipment, the charge will be
either 10% of total order or $100, whichever is greater.
If cancelled less than two weeks prior to scheduled shipment, the charge
will be either 20% of total order or $100, whichever is greater.
Special and custom products cannot be cancelled.
b.
Restocking Charges: For
standard products, 35% if returned within three months from the date of
shipment. Software and special,
sensor, and accessory products cannot be returned.
No products can be returned later than three months from the date of
shipment.
12.
Limitation on Assignment.
Neither party may assign any of its rights or obligations hereunder
without the prior written consent of the other except that Seller shall have the
right to assign to any corporation into which it shall be merged, with which it
shall be consolidated, or by which it, or all or substantially all of its
assets, shall be acquired.
13.
Export.
If the products are to be exported, this order is subject to Seller's
ability to obtain export licenses and other necessary papers within a reasonable
period. Buyer will furnish all
Consular and Custom declarations and will accept and bear all responsibility for
penalties resulting from errors or omissions thereon.
14.
FLSA, OSHA Compliance.
Seller certifies that any products described on the attached which
are manufactured by Seller will be produced in compliance with all applicable
requirements of Section 12 of the Fair Labor Standards Act, as amended, of
Sections 204(c), (d), 301-305, 401-403, and 501 of the Fair Labor Standards
Amendments of 1966, and of regulations and orders of the United States
Department of Labor issued under Section 501 thereof, and of Section 5(a) of the
Occupational Safety and Health Act of 1970, as applicable to the manufacture of
such products.
15.
Equal Opportunity Clause.
This clause applies only in the event that the products ordered
herein are to be used in whole or in part for the performance of government
contracts and where the dollar value of said products exceeds, or may in any one
year exceed, $10,000:
"In
connection with the performance of work under this contract, the contractor
(subcontractor) agrees not to discriminate against any employee or applicant for
employment because of race, color, religion, sex, or national origin.
The aforesaid provision shall include, but not be limited to, the
following: Employment, upgrading, demotion, or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship.
The contractor (subcontractor) agrees to post hereafter in conspicuous
places, available for employees and applicants for employment, notices to be
provided by the contracting officer setting forth the provisions of this
nondiscrimination clause.
"The
provisions of the Equal Opportunity Clause, as promulgated by Executive Order
11246 dated September 24, 1965, as amended, are incorporated herein by
reference."
16.
Entire Agreement. This document contains the entire agreement between
Seller and Buyer and constitutes the final, complete, and exclusive expression
of the terms of the agreement, all prior or contemporaneous written or oral
agreements or negotiations with respect to such terms as are included herein or
are the subject matter hereof being merged herein.
By way of illustration and not limitation, Buyer's order shall be deemed
to incorporate, without exception, all the terms and conditions hereof
notwithstanding any order form of Buyer containing additional or contrary terms
or conditions, unless Buyer shall have expressly advised Seller to the contrary
in a writing apart from the printed provisions of such order form, and no
acknowledgment by Seller of, or reference by Seller to, or performance by Seller
under an order of Buyer shall be deemed to be an acceptance by Seller of any
such additional or contrary printed terms or conditions.
In the event of a written request by Buyer for additional or contrary
terms or conditions, then such modifications may only be made in these terms and
conditions by a written instrument signed by one of Seller's officers.
17.
Severability. In the event that any word, phrase, clause, sentence, or
other provision hereof shall violate any applicable statute, ordinance, or rule
of law in any jurisdiction in which it is used, such provision shall be
ineffective to the extent of such violation without invalidating any other
provision hereof.
18.
Governing Law. This document and the sale of any products hereunder
shall be governed by and construed in accordance with the laws of the State of
Ohio.
19.
Quotations. Any drawings, specifications, or other data attached to
any Quotation furnished by Seller shall be deemed to be a part thereof.
Quotations furnished by Seller are not intended as and shall not be
construed as constituting an offer to Buyer.
Any quotation of Seller is subject to, and shall not become binding upon
Seller until (i) actual receipt by Seller of Buyer's written order based on all
the terms and conditions stated herein, without qualification, within sixty days
after the date hereof, and (ii) Seller's written acceptance of such order at its
main office in Dayton, Ohio.
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