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.
2. Acceptance.
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 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.
8. Warranty.
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
