 |
1. SCOPE
The Terms and Conditions (“Terms”) contained herein shall apply to all quotations and offers made by and purchase orders accepted by Mass Design, Inc.. These Terms apply to all sales made by Mass Design, Inc. except to the extent the Terms conflict with a Sales Agreement signed by Mass Design, Inc. and Buyer. These Terms apply in lieu of any course of dealing between the parties or usage of trade in the industry. These Terms may in some instances conflict with some of the terms and conditions affixed to the purchase order or other procurement document issued by the Buyer. In such case, the Terms contained herein shall govern, and acceptance of Buyer’s order is conditioned upon Buyer’s acceptance of the terms and conditions herein, irrespective of whether the Buyer accepts these conditions by a written acknowledgement, by implication, or acceptance and payment of products ordered hereunder. Mass Design, Inc.’s failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of the provisions herein. Any changes in the Terms contained herein must specifically be agreed to in writing signed by an officer of Mass Design, Inc. before becoming binding on either party.
2. PRICE, TAXES AND QUOTATIONS
Prices are subject to change on thirty days notice to Buyer. All prices are exclusive of any present or future sales, revenue or excise tax, value added tax, turnover tax, import duty (including brokerage fees) or other tax applicable to the manufacture or sale of any product. Such taxes, when applicable, shall be paid by Buyer unless Buyer provides a proper tax exemption certificate. Unless otherwise agreed to in writing by the parties, prices quoted by Mass Design, Inc. are those current at the date of quotation and shall be subject to variation by Mass Design, Inc.
3. DELIVERY
Unless otherwise agreed in writing, sales are FOB 41 Simon St., Nashua NH 03060. Mass Design, Inc. may deliver products in one or more consignments and invoice each consignment separately. Mass Design, Inc. reserves the right to ship product that is not subject to cancellation in advance of the agreed shipping date. Unless otherwise agreed in writing, delivery time is not of the essence. Mass Design, Inc. does not accept liability for any loss arising from delay in delivery of products.
4. PAYMENT TERMS
Unless otherwise agreed in writing, Payments shall be made by credit card (Visa, MasterCard and American Express). If approved for credit, payment terms shall be net thirty (30) days from the date of invoice. Buyer agrees to pay interest on any unpaid balance at a rate of 12%. Unless otherwise agreed in writing, all payments are to be in United States dollars. For contracts outside the United States, Mass Design, Inc. may require payment to be secured by an irrevocable letter of credit or a bank guarantee acceptable to Mass Design, Inc.. Where payment is made by letter of credit, all costs of collection shall be for Buyer’s account. In the event that Mass Design, Inc. is required to bring legal action to collect delinquent accounts, Buyer agrees to pay reasonable attorneys fees and costs of suit.
5. NON-CONFORMING DELIVERY AND RISK OF LOSS
Buyer shall notify Mass Design, Inc. of any visible defects, quantity shortages or incorrect product shipments within seven (7) days of receipt of the shipment. Failure to notify Mass Design, Inc. in writing of any visible defects in the products or of quantity shortages or incorrect shipments within such period shall be deemed an unqualified waiver of any rights to return products on the basis of visible defects, shortages or incorrect shipments, subject to Buyer’s rights under Section 7. Seller shall retain a security interest in the products until Buyer’s final payment to Mass Design, Inc. for the products. Risk of loss and title shall pass to Buyer as soon as the products have been placed with a transport agent.
6. ORDER CANCELLATION
Mass Design, Inc.’s Cancellation: Mass Design, Inc. shall have the right to cancel any unfilled order without notice to Buyer in the event that Buyer becomes insolvent, adjudicated bankrupt, petitions for or consents to any relief under any bankruptcy reorganization statute, or becomes unable to meet its financial obligations in the normal course of business.
7. LIMITED WARRANTY
Except as specified below, products sold hereunder shall be free from defects in materials and workmanship and shall conform to Mass Design, Inc.’s published specifications or other specifications accepted in writing by Mass Design, Inc. for a period of one (1) year from the date of shipment of the products. The foregoing warranty does not apply to any products which have been subject to misuse, neglect, accident or modification or which have been soldered or altered such that they are not capable of being tested under normal test conditions. Mass Design, Inc. shall make the final determination as to whether its products are defective. Mass Design, Inc.’s sole obligation for products failing to comply with this warranty shall be, at its option, to either repair, replace or issue credit for the nonconforming product where, within fourteen (14) days of the expiration of the warranty period, (i) Mass Design, Inc. has received written notice of any nonconformity; (ii) after Mass Design, Inc.’s written authorization, Buyer has returned the nonconforming product to Mass Design, Inc.; and (iii) Mass Design, Inc. has determined that the product is nonconforming and that such nonconformity is not the result of improper installation, repair or other misuse. THE FOREGOING WARRANTY AND REMEDIES ARE EXCLUSIVE AND MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MASS DESIGN, INC. DOES NOT ASSUME OR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH ITS PRODUCTS. Buyer shall pass this warranty to any third-party purchaser of Mass Design, Inc. products.
8. LIMITED LIABILITY
Neither Mass Design, Inc. nor Buyer shall be liable for incidental or consequential damages, including but not limited to, the cost of labor, requalifications, rework charges, delay, lost profits, or loss of goodwill arising out of the sale, installation or use of any Mass Design, Inc. product. If Mass Design, Inc. has any liability for breach of contract, breach of any implied condition, warranty or representation, the aggregate liability of Mass Design, Inc. to Buyer shall be limited in respect of any occurrence or series of occurrences to the contractual value of the products or services that are the subject of the contract.
9. PATENTS
Mass Design, Inc. Retains its Intellectual Property: The sale of any products hereunder does not convey any license by implication, estoppel or otherwise covering combinations of the products with other equipment data or programs. The company retains the copyright in all documents, catalogs and plans supplied to Buyer pursuant to or ancillary to the contract. Unless otherwise agreed in writing, Buyer shall obtain no interest in any mask or other tooling used in the production of any Mass Design, Inc. product.
10. LIFE SUPPORT
Mass Design, Inc.’s products are not authorized for use as critical components in life support devices or systems without the express written approval of an officer of Mass Design, Inc. As used herein: (a) Life support devices or systems are devices which (i) are intended for surgical implant into the body, or (ii) directly support or sustain life and whose failure to perform when properly used can be reasonably expected to result in significant injury to the user; (b) a critical component is any component in a life support device or system whose failure to perform can be reasonably expected to cause the failure of the life support device or system or to affect its safety or effectiveness.
11. CONFIDENTIAL INFORMATION
Except as required by law, neither party shall use (except for purposes connected with the performance of its obligations hereunder), divulge or communicate to any third party any information of the other it reasonably knows to be confidential.
12. FORCE MAJEURE
Mass Design, Inc. shall not be liable for any damage or penalty for delay in delivery or for failure to give notice of delay when such delay is due to the elements, acts of God, acts of the Buyer, act of civil or military authority, war, riots, concerted labor action, shortages of materials, or any other causes beyond the reasonable control of Mass Design, Inc.. The anticipated delivery date shall be deemed extended for a period of time equal to the time lost due to any delay excusable under this provision.
13. EXPORT REGULATIONS
Buyer agrees to comply fully with all laws and regulations concerning the purchase and sale of products. In particular, Buyer agrees to comply with the Export Administration Regulations of the United States in so far as they apply to the sale of products. The products are licensed by the United States for delivery to the ultimate destination as shown on the shipment/invoice address and any contrary diversion is prohibited.
14. ASSIGNMENT AND SUBCONTRACTING
Mass Design, Inc. shall be entitled at all times to assign its rights under the contract (in whole or in part) or to subcontract any part of the work or services to be provided under the contract as it deems necessary or desirable.
15. NOTICES
Any notice hereunder shall be deemed to have been given if sent by prepaid first class mail to the party concerned at its last known address. Notice to Mass Design, Inc. shall be to the regional sales office in the territory or to Mass Design, Inc. 41 Simon Street, Nashua, N.H. 03060.
16. WAIVER
Failure by Mass Design, Inc. to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
17. APPLICABLE LAW
Unless otherwise agreed in writing, the terms and conditions contained herein shall be governed by and construed under the laws of the State of New Hampshire, USA.
|
|
