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SWIFT TEXTILE METALIZING, LLC ("STM")
TERMS AND CONDITIONS OF SALE
1.
ACCEPTANCE
These Standard Terms and Conditions of Sale, together with information contained
in STM's written product order acknowledgment and/or invoice (and any additions
or revisions mutually agreed to in writing by STM and Buyer), shall constitute
the entire agreement and understanding of STM and Buyer with respect to the
purchase and sale of STM's products, superseding all prior oral or written
understandings relating thereto. If Buyer's order contains provisions
inconsistent with the provisions hereof, these terms and conditions shall
prevail. Buyer's sales order acknowledgment, acceptance of delivery or payment
for any products provided hereunder shall constitute Buyer's acceptance of all
terms and conditions herein. These terms and conditions are supplemented or
modified by applicable federal and state laws and regulations unless otherwise
modified or rejected in writing by STM and Buyer.
2. TERMS OF
PAYMENT
Unless otherwise agreed in writing, Payment terms shall be net thirty (30) days
from the date of invoice. In the event that STM is required to collect
delinquent accounts, Buyer agrees to pay all costs and expenses of collection
incurred by STM including but not limited to reasonable attorneys fees and costs
of suit.
3. TAXES
Prices quoted do not include any tax or other governmental charge or assessment
on the sale, shipment, production or use of any products sold to Buyer
hereunder. Such taxes and charges, when applicable, may appear as separate
additional charges on STM's invoice. Buyer shall be solely responsible for, and
shall pay to STM upon demand, any such tax, charge or assessment, unless Buyer
has furnished to STM an appropriate valid certificate of exemption issued by or
acceptable to the tax authority in question.
4. PACKING
AND SHIPMENT
All items will be packed for shipment in accordance with STM's standard
practices unless Buyer specifies and STM accepts in writing or by electronic
acknowledgement a preferred packing method, the cost of which shall be borne by
Buyer. Unless otherwise specified in writing by Buyer, STM will ship by the most
appropriate method, but by doing so does not assume any liability in connection
with the shipment. STM's obligations with respect to shipment and delivery
shall be met upon STM making deliver, whether at its location or otherwise, to
the carrier. Any and all claims by Buyer for damage or loss of products in
transit shall be made by Buyer against the carrier and STM shall have no
liability in connection therewith.
5.
PROPRIETARY INFORMATION – STM retains all rights and ownership to processes,
manufacturing methods, technical information, inventions, improvements, know-how
and any other information that has been conceived or developed or that may be
developed in the course of STM fulfilling Buyer's purchase agreement and all
such information shall be deemed proprietary information of STM and treated in a
confidential manner. Buyer may not disclose or use information that is provided
to Buyer by STM without STM’s written consent.
6. RETURNS
Written authorization to return products purchased from STM must be obtained
from STM prior to any such return. In STM's sole discretion, credit may be
granted with respect to returned products, less an appropriate restocking
charge, depending on the reason for the return and the condition of the product.
Any returned products must be shipped to STM, freight prepaid, at Buyer's risk.
7. LIMITED
WARRANTY
It is the sole and exclusive responsibility of Buyer to determine the
suitability of any and all products of STM for Buyer's intended purposes and
uses. STM warrants that the products sold hereunder conform to STM's applicable
specifications for such products (subject to STM's standard tolerances for
variations) as in effect at the time of shipment by STM, or, if applicable,
specifications provided by Buyer and expressly accepted by STM in writing
provided that STM shall not have any liability whatsoever for any damage to or
defect in products resulting directly or indirectly from events occurring after
the delivery of such products to carrier by STM. Liability of STM under or in
connection with the sale of its products shall be limited, at the sole option of
STM, to either refund of the purchase price received by STM or replacement of
any product provided that (a) Buyer notifies STM of Buyer's claim of any alleged
defect or nonconformity hereunder promptly after delivery (and in any event
within thirty (30) calendar days after receipt by Buyer), (b) the alleged
defective product is returned to STM promptly upon request and (c) STM concurs
that the product is defective or nonconforming hereunder.
This limited warranty is the sole and exclusive warranty given by STM with
respect to products sold or provided by STM. STM gives and makes no
representation or warranty of any kind, express or implied, other than that
expressly set forth herein. No representative of STM is authorized to give or
make any other representation or warranty or modify this warranty in any way
except in a written amendment of these standard terms and conditions of sale
signed by a duly authorized representative of STM which makes specific reference
to these standard terms and conditions of sale. Without limiting the
generality of the foregoing, no implied warranty of merchantability, no implied
warranty of fitness for any particular purpose, no implied warranty of title or
noninfringement and no implied warranty arising by usage of trade, course of
dealing or course of performance is given or made by STM or shall arise by or in
connection with any sale or provision of products by STM, or Buyer's use of any
products, or STM's and/or Buyer's conduct in relation thereto or to each other,
and in no event shall STM have any liability or obligation whatsoever under or
in connection with any such warranty with respect to any products.
8.
LIMITATION ON STM'S LIABILITY
Buyer acknowledges that no guarantees or assurances have been made as to the
results that may be obtained from the use of the products sold hereunder whether
used singly or in combination with other items. Buyer acknowledges that it does
not rely on, and waives any claim relating to, any recommendation or instruction
given to Buyer by STM or any of its representatives regarding the
specifications, storage, handling or use of products purchased and sold
hereunder, which recommendation or instruction shall be followed or acted upon
by Buyer entirely at Buyer's own risk.
9. STM's
liability, and Buyer's exclusive remedy, in connection with the sale or use of
products sold hereunder (whether based on contract, negligence, breach of
warranty or otherwise), shall be strictly limited to STM's obligations as
specifically and expressly provided in the limited warranty set forth above.
Except as specifically provided in such limited warranty, STM shall have no
liability, obligation or responsibility of any kind, in any way or to any extent
for any losses, expenses, costs, damages or liabilities for any representation
or warranty of any kind with respect to the products (or the performance
thereof), or arising in any way or in connection with the purchase by or use or
sale of the products by Buyer, even if STM has been advised of the possibility
of such damages. In no event whatsoever shall STM have any liability, obligation
or responsibility for any indirect, incidental, consequential, special, or
exemplary damages arising in any way in connection with the products or their
sale or use, including but not limited to damage to property, injury to persons,
loss of use of the products or any item with which such products are used, lost
profits, or delays or inconvenience. In no event whatsoever shall STM have any
liability to Buyer, arising out of or in connection with the sale or use of the
products sold hereunder, the transactions contemplated hereby, or STM's or
Buyer's conduct or actions in relation to any of the same or to each other, in
an amount in excess of, and STM's liability shall be strictly limited to, the
amount(s) actually received by STM from Buyer as purchase price for the products
which give rise to STM's liability.
10.
INDEMNIFICATION
Buyer agrees to indemnify, hold harmless and defend STM (and its employees,
subsidiaries, affiliates, successors, assigns and agents) from and against any
and all judgments, liabilities, damages, losses, expenses and costs (including,
but not limited to, court costs and attorneys' fees) incurred or suffered by
STM, which relate to or arise out of (a) Buyer's use, handling, sale or
distribution/sale of the products sold hereunder; (b) Buyer's breach of any
representation, warranty or obligation hereunder; and/or (c) the infringement or
violation of any third party's intellectual property or other rights arising out
of or in connection with STM's use of specifications, materials or other items
provided to STM by Buyer.
11. WAIVER
STM shall not be deemed to have waived any provision hereof, or any breach by
Buyer of any provision hereof, unless such waiver is specifically set forth in
writing and executed by an authorized officer of STM. No waiver by STM of any
provision hereof or any breach by Buyer hereunder shall constitute a waiver of
such provision on any other occasion or a waiver of any other breach by the
Buyer.
12. FORCE
MAJEURE
In no event shall STM have any liability to Buyer for any delayed performance or
nonperformance by STM which results, in whole or in part, directly or
indirectly, from any cause beyond the reasonable control of STM. Such causes
shall include (but shall not be limited to) acts of God, wars, riots, civil
disturbances, strikes, labor disputes, fires, storms, floods, earthquakes,
natural disasters, inability to obtain or use raw or component material or
parts, labor, equipments, facilities, or transportation, and acts of any
government or agency thereof. Buyer's order will be deemed suspended for so long
as any such cause prevents or delays STM's performance. In the event of any such
suspension, STM shall have the right, at its option, upon notice to Buyer, (a)
to terminate its obligation to sell any or all of the products ordered hereunder
or (b) to resume performance as soon as practicable after the suspension, and
reschedule delivery of the products ordered hereunder to one or more deferred
dates to be mutually agreed upon by Buyer and STM, subject to Buyer's payment of
any additional charge for any increase in STM's direct or indirect costs
occasioned by the suspension of its performance.
13. GOVERNING
LAW
These Standard Terms and Conditions of Sale and the transactions contemplated
hereby shall be governed by, and construed and enforced in accordance with, the
laws of the State of Connecticut without regard to its conflicts of law rules.
Jurisdiction and venue in any litigation shall be in the courts of the State of
Connecticut exclusively.
14. SEPARABILITY
The invalidity or unenforceability, in whole or in part, of any provision, term
or condition hereof shall not affect the validity and enforceability of the
remainder of such provision, term or condition or of any other provision, term,
or condition, and, to the extent possible, such invalid or unenforceable
provision shall be replaced by a provision most nearly reflecting the
fundamental objectives of the original provision.
15. AMENDMENTS
These Terms and Conditions of Sale may not be amended except by written
agreement of STM and Buyer expressly referring hereto.
16. ASSIGNMENT
Buyer's rights and obligations hereunder may not be assigned or otherwise
transferred without STM's express prior written consent.
F-7.2-04
4/22/2008 |
