Standard Terms and Conditions of Sale
Purchase orders based on Abtex, LLC proposals are subject to acceptance only at Seller’s home office signed by an authorized officer of the seller. All accepted orders are subject to the following terms and conditions:
- Price: Prices are firm and expire after 30 days unless otherwise stated on the proposal. Thereafter, prices are subject to change, without notice, to published prices of Seller in effect at the time of purchase order acceptance.
- Title and Delivery: Goods shall be delivered F.O.B. at Seller’s designated facility. Title to equipment and liability for loss or damage to the equipment shall pass to Buyer upon Seller’s delivery of the goods to a carrier for shipment to the Buyer. Buyer shall bear all transportation and insurance expense associated with delivery of the equipment to Buyer’s facility.
- Time of Delivery: Seller shall not be liable for any loss or expense (including consequential, incidental, or otherwise) incurred by Buyer or Buyer’s customers as a result of Seller’s failure to meet a specified delivery schedule. Buyer’s sole remedy for Seller’s failure to meet a delivery schedule shall be cancellation of the order. However, Seller’s time for making deliveries shall be extended for reasonable amounts of time based upon reasonable delays due to causes beyond the control of the Seller. Seller shall not be charged with any liability for delay or non-delivery when due to delays of suppliers, acts of God or the public enemy, compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it proves to be invalid, fires, riots, labor disputes, unusually severe weather, or any other cause beyond the reasonable control of the seller. To the extent that such causes actually delay deliveries on the part of the Seller, the time for performance by Seller shall be extended for a reasonable period of time, taking into account the nature of the delay.
- Customer Furnished Materials: Materials, tools, dies, and other property furnished to Seller by Buyer shall be at Buyer’s risk and expense.
- Product Specifications: Seller may modify the specifications of equipment designed or supplied by Seller, provided that the modification will not materially affect the performance of the equipment.
- Warranty and Limits of Liability: Equipment, parts, and software supplied hereunder have been purchased by Seller from other manufacturers and shall only have the warranty offered by the manufacturer thereof. Should any failure occur during the manufacturer’s warranty period, Seller shall, if given prompt notice by the Buyer, correct the nonconformity in the manner as described in the manufacturer’s warranty policy. Seller shall make the initial determination as to whether or not the repair shall be made at the job site or elsewhere. If the repair or replacement is to be made at the job site, it shall be done during the Seller’s normal working hours, or, should labor be required at times other than normal working hours at the request of the Buyer, said time shall be billed at applicable overtime rates prevailing for services of Seller’s personnel.
Repair parts are only as warranted by the manufacturer thereof. Repairs or replacements to original equipment shall not renew or extend the warranty period of equipment. Replaced equipment or parts become the property of the manufacturer.
A charge will be made in accordance with Abtex “SCHEDULE A: INSTALLATION, TRAINING, AND SERVICE RATES”, for parts and services which (1) fall in the general category of normal maintenance, (II) are needed to make additions or modifications requested by the purchaser (III) are needed to make repairs not covered by this warranty, such as damage caused by accident, misuse, neglect, alteration, improper storage, installation or maintenance, unauthorized repair, or programming problems.
Seller’s sole and exclusive liability hereunder shall be to repair or replace equipment or parts thereof found to be defective within the warranty period or, upon failure of such remedy, to refund to the Buyer the purchase price of the equipment, or part thereof which gives rise to the claim. In no event shall Seller or the equipment manufacturer be liable to the Buyer for incidental or consequential damages whether in contract, tort, negligence, strict liability, or indemnity, including but not limited to loss of profits or revenue, loss of use of the equipment or any associated equipment, cost of substitute equipment, downtime costs, or other damages to the purchaser or its customers.
The foregoing warranty relative to the product or products sold hereunder, whether for hardware or software products, is the exclusive warranty, and is in lieu of all other warranties pertaining to quality or performance and whether expresses, implied, or statutory, including any warranties of merchantability or of fitness for a particular purpose.
- Time Limitation on Actions: No action shall be brought for any breach of this contract or for any claim of negligence or otherwise arising hereunder more than one year after the accrual of the cause of action. The effect of the provision is to shorten statutes of limitation which might otherwise apply.
- Remedies and Damages: If Seller breaches any provision of this contract, the exclusive maximum liability of the Seller, and Buyer’s sole and exclusive remedy based on the contract, tort, or otherwise, shall not in any event exceed the contract price for the particular item of equipment involved.
- Applicable Law: The validity, performance, and construction of this contract shall be governed by the laws of the State of New York. Any claims or actions brought hereunder shall have their venue in the State of New York.
- Waiver: The failure of Seller to enforce at any time any of the provisions, rights, or remedies of Seller under this contract, or to exercise any election or option provided herein, or to require any time of performance by buyer or any of the provisions hereof, shall in no way be construed to be a waiver of such provisions, rights, or remedies, nor in any way to affect the validity of this agreement or any part thereof, or the right of Seller thereafter to enforce each and every such provision, right, or remedy.
- Acceptance: Prior to shipping any product sold hereunder, Seller may arrange for a trial run of that product at Seller’s facility. If the trial run is in accordance with the usual standards which apply to Seller’s product, or to predetermined standards of the Buyer which are given prior approval by the Seller, the Buyer’s representative in attendance at the trial run shall sign a form authorizing acceptance of the design, build, and materials of all supplied equipment. Seller shall thereafter be authorized to prepare and ship the equipment without further modification. All changes requested by Buyer after acceptance will be charged to Buyer according to Abtex “SCHEDULE A: INSTALLATION, TRAINING, AND SERVICE RATES”.
- Notices: All notices and demands of any kind which either party may be required or desire to serve upon the other under the terms of this agreement shall be in writing and shall be served by personal service or by mail at the designated address of the receiving party. All notices or demands made by mail shall be by certified or registered mail, return receipt requested, and shall be deemed complete five days after mailing.
- Validity: In the event that any of the provisions of this agreement shall be held to be unenforceable by a court or other tribunal of competent jurisdiction, the remaining portions of this agreement shall nevertheless remain in full force and effect, and that the removal of said provisions shall not render the whole of this agreement invalid.
- Cancellation: If Buyer shall terminate or cancel the order herein specified without good cause, Buyer shall pay to the Seller the following amounts: (1) the purchase order price for all items or services which have been completed in accordance with this order and not previously paid for; (2) the actual costs plus a reasonable profit, not to exceed the aggregate purchase price specified in this order, of work-in-process and raw materials expended by Seller in furnishing the items or services under this order to the extent such costs are reasonable in amount and are properly allocated or apportioned under generally accepted accounting practices to the terminated portion of the order.
- Entire Agreement: This contract constitutes the entire agreement between the parties. It supersedes all previous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. No representations or statements of any kind made by any representative of Seller which are not stated herein shall be binding on Seller. No addition to or modification of any provision of the contract shall be binding on Seller unless made in writing and signed by a duly authorized representative of Seller at the Seller’s principal place of business at Dresden, NY, USA. No course of dealing or usage of trade or course of performance shall be relevant to explain or supplement any term expressed in this contract.