Products furnished and services rendered by Quartzdyne (“Seller”) are sold or furnished only on the terms and conditions stated herein. Notwithstanding any terms or conditions on Customer's order, Seller's performance of any contract is expressly made conditional on Customer's agreement to Seller's Terms and Conditions of Sale unless otherwise specifically agreed to in writing by Seller.All contracts for the sale of Products shall be construed under and governed by the laws of the State of Utah.Customer must comply with United States Bureau of Export Administration regulations as they currently exist regarding re-export.Seller’s Products qualify as originating merchandise under the “NAFTA Rules of Origin.”Seller’s Products are licensed by the United States for the ultimate destination as shown in the Commercial Invoice or Seller’s Sales Order.Diversion contrary to United States law is prohibited.
1.Quotations and Prices. All quotations are subject to the Terms and Conditions stated herein as well as any additional terms and conditions that may appear on the Seller’s Sales Order or other agreement. In the case of a conflict between the Terms and Conditions stated herein and those appearing on the Seller’s Sales Order, the latter shall control. Seller's prices and quotations are subject to the following:
a. All published prices are subject to change without notice.
b. Unless otherwise specified in writing, all quotations are firm, expire thirty (30) days after the date hereof and constitute offers; provided that, budgetary quotations and estimates are for preliminary information only shall neither constitute offers nor impose any responsibility for liability upon Seller.
c. All shipments will be billed at prices in effect on the date of acceptance of Customer’s order.
d. Unless otherwise stated in writing by Seller, all prices quoted shall be exclusive of transportation, insurance, taxes (including, without limitation, any use tax, sales tax or similar tax), license fees, customs fees, duties and other charges related thereto, and Customer shall report and pay any and all such shipping charges, premiums, taxes, fees, duties and other charges related thereto, and shall hold Seller harmless therefrom.
e. Stenographic, typographical and/or clerical errors are subject to correction.
f. prices quoted are for Products only and do not include technical data, proprietary rights of any kind, patent rights, qualifications, environmental, or other than Seller’s standard tests and other than normal domestic commercial packaging unless expressly agreed to in writing by Seller.
Each Product furnished by Seller shall be deemed accepted by Customer unless notice of defect or nonconformity as determined by quality assurance testing is received within thirty (30) days of delivery thereof.Notwithstanding the foregoing, use of any such Product by Customer, its agents, employees or licensees, for any purpose after delivery thereof, shall constitute acceptance of the Product by Customer.3.Termination.
No order for Products may be terminated by Customer except by mutual agreement in writing.After acceptance of the Product by the Customer, no credit will be allowed for return of the Product to the Seller unless agreed to by the Seller.Termination by mutual agreement is subject to the following conditions: (1) Customer will pay, at applicable contract prices, for all Products which are completely manufactured and allocable to Customer at the time of Seller's receipt of notice of termination, (2) Customer will pay all costs, direct and indirect, which have been incurred by Seller with regard to Products which have not been completely manufactured at the time of Seller's receipt of notice of termination, plus a pro rata portion of normal profit on the contract, (3) Customer will pay a termination charge on all other Products affected by the termination. Seller's normal accounting practices shall be used to determine costs and other charges.To reduce termination charges, Seller will divert completed parts, material or work in process from terminated contracts to other customers whenever, in Seller's sole discretion, it is practical to do so.4.Intellectual Property.
Customer shall hold Seller harmless against any expense, loss, costs, or damages resulting from claimed infringement of patents, trademarks or other industrial property rights arising out of compliance by Seller with Customer's designs, specifications, or instructions.5.Terms of Payment.
Unless credit is granted, payment is due upon delivery.All payments for Products released and shipped on approved credit accounts shall be due in full thirty (30) days from date of invoice thereof.Past due balances shall be subject to a service charge of 1.5% per month (18% per annum), but not more than the amounts allowed by law.Partial shipments will be billed as made and payments therefor are subject to the above terms.Payment shall not be withheld for delay in delivery of required documentation unless a separate price is stated therefor, and then only to the extent of the price stated for such undelivered documentation.Seller may cancel or delay delivery of additional Products sold on credit in the event customer fails to make timely payment on outstanding invoices.Seller may establish credit limits for each Customer; no shipments shall be made if the total of the new and outstanding invoices exceeds the credit limit.Title shall remain in Seller until Customer has made payment in full in accordance with the terms hereof.Customer shall cooperate fully with Seller to execute such documents and to accomplish such filings and/or recordings thereof as Seller may deem necessary for the protection of Seller's interests in the Products furnished.6.Transportation and Risk of Loss.
Unless otherwise agreed to in writing by Seller, all transportation shall be at the expense of Customer.Seller reserves the right to ship Products freight collect and to select the means of transportation and routing.Unless otherwise advised, Seller may insure to full value of the Products or declare full value thereof to the transportation company at the time of delivery and all such freight and insurance costs shall be for Customer's account.Risk of loss or damage shall pass to Customer upon delivery of the Products to the transportation company at the FOB point, whether or not installation is provided by or under supervision of Seller.Confiscation or destruction of, or damage to, Products shall not release, reduce, or in any way affect the liability to Customer therefor.Notwithstanding any defect or nonconformity, or any other matter, such risk of loss shall remain in Customer until the Products are returned at Customer's expense to such place as Seller may designate in writing.Customer, at its expense, shall fully insure Products against all loss or damage until Seller has been paid in full therefor, or the Products have been returned, for whatever reason, to Seller.Any and all taxes levied on or with respect to Products after delivery thereof to the transportation company, including, without limitation, taxes levied on or assessed to Seller by reason of its retention of title, shall be paid by Customer, provided, however, in the event Seller, in its sole discretion, chooses to pay such taxes, then Customer shall reimburse Seller in full upon demand.All Products must be inspected upon receipt and claims should be filed with the transportation company when there is evidence of damage, either concealed or external.As used in the clauses appearing herein or attached hereto, "delivery" shall occur when Products are delivered at the FOB shipping point, which shall be the point of manufacture or such other place as Seller shall specify in writing, notwithstanding installation by or under supervision of Seller.7.Performance.
Seller shall not be liable in any way because of any delay in performance hereunder due to unforeseen circumstances or to causes beyond its control, including, without limitation, strike, lockout, riot, war, fire, act of God, accident, failure or breakdown of components necessary to order completion, subcontractor, supplier or Customer caused delays, inability to obtain labor, materials or manufacturing facilities, or compliance with any law, regulation or order, whether valid or invalid, of any cognizant government body or any instrumentality thereof whether now existing or hereafter created.Performance shall be deemed suspended during and extended for such time as any such circumstances or causes delay its execution.Whenever such circumstances or causes have been remedied, Seller will make and Customer shall accept performance hereunder.In addition, Seller's inventories and current production must be allocated so as to comply with applicable Government regulations. In the absence of such regulations, Seller reserves the right, in its sole discretion, to allocate inventories and current production and substitute suitable materials when, in its opinion, such allocation or substitution is necessary due to any such circumstances or causes.No penalty clause of any kind shall be effective.As used herein, “performance” shall include, without limitation, fabrication, shipment, delivery, assembly, installation, testing, and warranty repair or replacement, as applicable.
The warranty set forth below is exclusive and no other warranty, whether written or oral, is expressed or implied.
(a)Products manufactured by Seller are warranted solely against defects in materials and workmanship for one year from date of shipment thereof to Customer. Seller's liability under valid warranty claims is limited, at the option of Seller, to repair, replacement, or refund of an equitable portion of the purchase price of the Product. Items expendable in normal use are not covered by this warranty. All warranty replacement or repair of parts shall be limited to Product malfunctions which, in the sole opinion of Seller, are due or traceable to defects in original workmanship. All obligations of Seller under this warranty shall cease in the event of abuse, accident, alteration, misuse or neglect of the Product. In-warranty repaired or replacement parts are warranted only for the remaining unexpired portion of the original warranty period applicable to the repaired or replaced parts. After expiration of the applicable warranty period Customer shall be charged at the then current prices for parts, labor, and transportation.
(b)Customer acknowledges that reasonable care must be used to avoid hazards, and that use of Seller's Product for any purpose is undertaken by Customer at Customer's own risk. Seller expressly disclaims responsibility for loss or damage caused by use of its Products other than in accordance with proper operating procedures. Warranties given by suppliers of equipment or proprietary components not manufactured by Seller but incorporated by Seller into its Products shall be passed on to Customer; provided that in no event shall Seller have any liability for failure of any such supplier to perform on its warranty.
(c)The purchase and use of Seller's Products are at the insistence and request of Customer for Customer's own purposes, and Customer acknowledges that such purchase and use is not based on any representation, assurance, or suggestion of Seller. Accordingly, Seller makes no representation or warranty, expressly or impliedly, as to the quality, operability, safety, or suitability of its Products. By way of example, but not of limitation, Seller makes no representation or warranties of merchantability or fitness for a particular purpose with regard to its Products. Customer accepts the Products as-is, except for material or workmanship.9.Warranty Replacement and Adjustment.
All claims under warranty must be made promptly after occurrence of circumstances giving rise thereto, and must be received within the applicable warranty period by Seller or its authorized representative. Such claims should include the Product serial number, the date of shipment, and a full description of the circumstances giving rise to the claim. Before any Products are returned for repair and/or adjustment, written authorization must be obtained from Seller or its authorized representative for the return and instructions as to how and where these Products should be returned. Any Product returned to Seller for examination shall be sent prepaid via the means of transportation indicated as acceptable by Seller. Seller reserves the right to reject any warranty claim not promptly reported and any warranty claim on any item that has been altered or has been returned by nonacceptable means of transportation. When any Product is returned for examination and inspection, or for any other reason, Customer shall be responsible for all damage resulting from improper packing or handling, and for loss in transit, notwithstanding any defect or nonconformity in the Product. In all cases Seller has sole responsibility for determining the cause and nature of failure, and Seller's determination with regard thereto shall be final.If it is found that Seller's Product has been returned without cause and is still serviceable, Customer will be notified and the Product returned at its expense.In addition, a charge for testing and examination may be made on Products so returned.10.Damages and Liability.
Seller's liability for damages shall not under any circumstances exceed the amount seller actually receives for the product furnished, or to be furnished, or service rendered, or to be rendered, as the case may be, which is the subject of any claim or dispute, and in no event shall seller be liable for incidental, consequential, or special damages arising out of or otherwise relating to products furnished or services rendered by seller. Seller shall not be liable for claims, including those by third parties, for personal injuries, including death, or property damage.11. Product Liability.
Customer, its successors or assigns, hereby agrees to defend and indemnify Seller and hold it harmless from any and all costs, expenses, or liabilities, including, without limitation, attorney's fees, judgments or court costs, which Customer may incur by reason of a claim or action by third parties relating directly or indirectly to goods sold, rented, leased or in any manner supplied by Customer to a third party, such goods containing or otherwise including Products furnished by Seller to Customer.
15 July 2008 (updated 12 October 2012)