__Terms and conditions of sale
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Set forth below are INNOVATIVE ARC TUBES CORPORATION (hereinafter referred to as ITC) Standard Terms and Conditions of Sale.
1. ACCEPTANCE: These terms and conditions shall apply and be deemed incorporated in any order or contract unless modified by an overriding agreement mutually accepted by representatives of ITC and Buyer. Acceptance by ITC of the Buyers order is expressly conditional upon Buyer's assent to these terms and conditions and the Buyers acceptance of merchandise delivered shall be deemed to be an unqualified assent hereto. ITC’s failure to object to provisions contained in any communications from the Buyer shall not constitute a waiver of these terms and conditions. Any changes in the terms and conditions contained herein must specifically be agreed to in writing by an officer of ITC before becoming binding on either ITC or the Buyer.
2. PAYMENT TERMS: Unless otherwise agreed to by ITC, all invoices are due and payable thirty (30) days from date of invoice. No discounts are authorized. A late payment charge of 1 ½% shall be charged on all past due accounts and Buyer shall pay ITC all cost s incurred by ITC in collecting any past due invoice from the Buyer, including all court costs and attorney’s fees. However if the foregoing charges exceed the rate which is the maximum permitted by law, then the charges will calculated to the highest allowable lawful rate. All payments must reference the ITC invoice number to assure proper credit. On shipments delayed by the Buyer, invoices will be issued on the date when ITC is prepared to make shipment. Products held for the Buyer shall be at the risk and expense of the Buyer.
3. TAXES: Unless otherwise agreed to by ITC, all prices will be quoted, all orders accepted and all billing will be rendered exclusive of all federal, state and local excise, sales value added and similar taxes. Such taxes when applicable will appear as additional items on ITC invoices unless a properly executed exemption certificate is received by ITC prior to shipment.
4. SHIPMENTS: Title, Risk of Loss and Security. Unless otherwise agreed to by ITC, all quotations and sales are based upon shipments being made FOB ITC’s factory. For FOB ITC factory shipments, ITC’s liability ceases and title and risk of loss pass to Buyer upon ITC making delivery of products purchased hereunder to the carrier at the shipping point, the carrier acting as Buyer’s agent. The Buyer must file all claims for damages with the carrier. ITC reserves a purchase money security interest in all products delivered hereunder until such time as the purchase price is paid in full. This document may be filed as a security evidencing such security interest.
5. ROUTING OF SHIPMENT: Consistent with service requirements, and type of product involved, all shipments will normally be packed by the most economical means and packed for domestic transportation to meet the standard requirements of US common carriers. ITC reserves the right in all cases to select the means of transportation and the routing unless otherwise specified by the Buyer. If shipment is made on request of Buyer by a method of delivery and/or direct routing involving additional and/or premium transportation and/or packing expense, the Buyer will pay the additional cost.
6. DELIVERY: ITC will attempt to meet the delivery schedule requested by the Buyer. However, any delivery quotation is only an estimate of the time required to make shipment. ITC shall not be responsible for delays in delivery or failure to deliver due to causes beyond its control, including without limitation, acts of God, act of Buyer, government action (civil or military) taking or preempting ITC’s production facilities, legal interferences or prohibitions, fires, strikes or other labor difficulties, wars or hostilities, insurrections or riots, embargoes, equipment breakdown, wrecks or delays in transportation, unusually severe weather, inability to obtain necessary labor, material or manufacturing facilities due to reasons beyond its control, or any like or dissimilar cause beyond its control. In the event of such delay, the date of delivery shall be extended for a period equal to the time lost by reason of delay. ITC shall have the right to furnish suitable substitutes for materials which cannot be obtained because of the above causes and to apportion its shipments among its customers in such manner as it shall deem equitable.
7. WARRANTY: ITC warrants that the products delivered hereunder will be in substantial conformity with specifications furnished by Buyer and accepted by ITC and free from defects in material and workmanship. ITC’s obligation under this warranty shall be limited to (at its option) repairing, replacing or granting a credit at the prices invoiced at the time of shipment of any said products which shall within 90 days be returned to the factory, per the “Adjustments” clause, and which are, after inspection, disclosed to ITC’s satisfaction to have been defective in the form in which they were shipped by ITC before their use. This warranty shall not apply to any such products which shall have been repaired or altered, except by ITC, or which shall have been subject to physical or electrical abuse or misuse, including use of a lamp and ballast combination not approved by ITC in writing. Other than as set forth above, there are no express or implied warranties, including that of merchantability and fitness, made by ITC in respect to any products sold hereunder.
8. ADJUSTMENTS: When a Buyer wishes to return products, under the “Warranty” clause, he shall first obtain written approval from ITC. Following receipt of such approval, shipment may be made via the route specified in such approval, freight pre-paid by the Buyer. The package in which products are returned must be able to withstand normal freight handling and include a packing list stating the quantities and types of products being returned, the invoice number of the original shipment and the reason for return. Upon receipt ITC will inspect the returns by appropriate means and notify Buyer of its decision regarding ITC responsibility. Returns found to be ITC’s responsibility under the warranty set forth hereinabove will be repaired, replaced or credited to the Buyer at ITC’s option. Returns found to be serviceable without defect will be returned to the Buyer collect.
9. LIMITATION OF LIABILITY: ITC shall not be liable for special or consequential damages of any nature with respect to any product or services sold hereunder. Buyer agrees to indemnify and hold ITC harmless from any such claims.
10. PATENTS AND TRADEMARK INDEMNITY: ITC assumes no consequential or other liability for, and the Buyer agrees to indemnify and hold ITC harmless against any claims (including attorneys fees) resulting from the production of articles or materials which are manufactured by ITC to the Buyers specification or from the production of articles designed by ITC to meet the Buyers requirements or arising out of the use of any equipment, materials, parts or machinery furnished by the Buyer in making products to the Buyers specifications. Furthermore, ITC assumes no consequential or other liability for, and the Buyer agrees to hold ITC harmless from, infringement of patent claims covering any equipment, assembly, system, circuit, or combination in which any such products maybe used as a component, or from any trademark infringements involving any marking or branding not applied by ITC or involving any marking or branding applied at the request of the Buyer. No costs or expenses under this paragraph shall in any event be incurred for the account of ITC without its written consent.
11. SALES CONVEYS NO LICENSE: ITC products are offered for sale and sold subject to conditions that such sales do not convey any license expressly or by implication, estoppel, or otherwise, under patent claim with respect to which ITC can grant license covering a completed equipment or assembly, system, circuit, combination, method of process in which such products which are used as components (notwithstanding the fact that such products may have been designed for use in, or in any way may be useful in, such patented equipment, assembly, system, circuit combination, method or process, and that such products may have been purchased and sold for such use). ITC expressly reserves all such rights under such patent claims.
12. CHANGES: Buyer shall have the right (by written change order) to request a change to product specifications, delivery dates, quantities and/or delivery schedules, provided, however, that prior to the implementation any such change(s), such changes shall be subject to written acceptance by ITC and an equitable adjustment to the contract price and/or delivery schedule, as appropriate, shall be made.. A reduction in order quantity may result in an increase in the per unit price including loss of volume of other discounts that may have been originally applied.
13. TOOLING, DIES, TEST FIXTURES, DRAWINGS, ETC:
a. Unless otherwise specifically agreed upon in writing between the Buyer and ITC, all tooling, dies, test fixtures, and all drawings of every kind (hereinafter referred to as “Tooling”) used by ITC in, and not owned by Buyer prior to the performance of the Buyers order, shall remain the exclusive property and under the exclusive control of ITC and shall not be delivered to the Buyer.
b. Any Tooling sold to the Buyer is sold “AS IS” without any warranties whatsoever and Buyer agrees to indemnify ITC against all claims arising out of the use of such Tooling.
14. BUYER’S MATERIAL: Orders requiring the use of the Buyer’s raw material components, and or equipment are accepted subject to the delivery of material, component and/or equipment, at the time, in the amount, and in dimensions as specified by ITC, FOB its plant. If any of the material, components and/or equipment is defective or will not perform to ITC’s requirements for any reason, ITC may cancel Buyer’s order without incurring liability, and the Buyer shall pay for costs per the termination section hereunder. Scrap resulting from fabrication of the Buyer’s products shall be the property of ITC unless otherwise agreed upon in writing. It shall be the Buyer’s responsibility to furnish raw material, components and/or equipment acceptable to ITC and if it is necessary to inspect, gage or rework, it will be upon the Buyer’s approval at the Buyer’s expense.
15. COMPLIANCE WITH LAWS: ITC does not assume any liability for the Buyer’s or the products’ compliance with any federal, state or local laws or regulations. The Buyer will indemnify and hold ITC harmless from any claims, damages, and expenses associated with any product recall.
16. TERMINATION: Any order may be terminated by the Buyer upon less than thirty (30) days prior written notification to ITC, subject to the following conditions:
a. Buyer will accept delivery of, and pay for, all products that are completely manufactured as of the effective date of termination.
b. The Buyer will pay any costs, direct or indirect, which have been incurred by ITC with regard to products which have been completely manufactured at the effective date of termination, and a reasonable profit thereon. Such costs include, but are not limited to: all material and work-in-process in inventory for use in the product including all associated costs; vendor cancellation charges for cancelled material for the product; material for the product which ITC is obliged to accept after cancellation, start-up, preparation and shut-down costs; and any capital equipment bought and used specifically for the order in question which becomes excess due to cancellation.
c. Notwithstanding the foregoing, the total of all items for which Buyer is liable, including products shipments and (A) and (B) above shall not exceed the total contract price of the order.
17. ORDERS: These terms and conditions shall be deemed included as part of any order or orders placed with ITC. Purchase orders containing language which modifies, adds to, or is in any way inconsistent with ITC’s Standard Terms of Quotation and Sale as contained herein are accepted by ITC only on the express condition that any such language in such purchase orders shall be inoperative, and that the liabilities of ITC shall be determined solely by ITC’s Terms and Conditions of Sale. No terms and conditions other than those stated herein and no written or oral agreement that purports to vary these terms and conditions shall be binding upon ITC unless specifically agreed to n writing by an officer of ITC.
18. CUSTOM PRODUCTS: For products ordered that are not in our standard catalogue, ITC may revise the ship quantity by +/- 5%.
19. AMENDMENT OF TERMS: These terms and conditions of sale are subject to withdrawal or change by ITC at any time. Until modified or withdrawn, the terms and conditions herein will govern unless specifically changed in writing by an officer of ITC.
Set forth below are INNOVATIVE ARC TUBES CORPORATION (hereinafter referred to as ITC) Standard Terms and Conditions of Sale.
1. ACCEPTANCE: These terms and conditions shall apply and be deemed incorporated in any order or contract unless modified by an overriding agreement mutually accepted by representatives of ITC and Buyer. Acceptance by ITC of the Buyers order is expressly conditional upon Buyer's assent to these terms and conditions and the Buyers acceptance of merchandise delivered shall be deemed to be an unqualified assent hereto. ITC’s failure to object to provisions contained in any communications from the Buyer shall not constitute a waiver of these terms and conditions. Any changes in the terms and conditions contained herein must specifically be agreed to in writing by an officer of ITC before becoming binding on either ITC or the Buyer.
2. PAYMENT TERMS: Unless otherwise agreed to by ITC, all invoices are due and payable thirty (30) days from date of invoice. No discounts are authorized. A late payment charge of 1 ½% shall be charged on all past due accounts and Buyer shall pay ITC all cost s incurred by ITC in collecting any past due invoice from the Buyer, including all court costs and attorney’s fees. However if the foregoing charges exceed the rate which is the maximum permitted by law, then the charges will calculated to the highest allowable lawful rate. All payments must reference the ITC invoice number to assure proper credit. On shipments delayed by the Buyer, invoices will be issued on the date when ITC is prepared to make shipment. Products held for the Buyer shall be at the risk and expense of the Buyer.
3. TAXES: Unless otherwise agreed to by ITC, all prices will be quoted, all orders accepted and all billing will be rendered exclusive of all federal, state and local excise, sales value added and similar taxes. Such taxes when applicable will appear as additional items on ITC invoices unless a properly executed exemption certificate is received by ITC prior to shipment.
4. SHIPMENTS: Title, Risk of Loss and Security. Unless otherwise agreed to by ITC, all quotations and sales are based upon shipments being made FOB ITC’s factory. For FOB ITC factory shipments, ITC’s liability ceases and title and risk of loss pass to Buyer upon ITC making delivery of products purchased hereunder to the carrier at the shipping point, the carrier acting as Buyer’s agent. The Buyer must file all claims for damages with the carrier. ITC reserves a purchase money security interest in all products delivered hereunder until such time as the purchase price is paid in full. This document may be filed as a security evidencing such security interest.
5. ROUTING OF SHIPMENT: Consistent with service requirements, and type of product involved, all shipments will normally be packed by the most economical means and packed for domestic transportation to meet the standard requirements of US common carriers. ITC reserves the right in all cases to select the means of transportation and the routing unless otherwise specified by the Buyer. If shipment is made on request of Buyer by a method of delivery and/or direct routing involving additional and/or premium transportation and/or packing expense, the Buyer will pay the additional cost.
6. DELIVERY: ITC will attempt to meet the delivery schedule requested by the Buyer. However, any delivery quotation is only an estimate of the time required to make shipment. ITC shall not be responsible for delays in delivery or failure to deliver due to causes beyond its control, including without limitation, acts of God, act of Buyer, government action (civil or military) taking or preempting ITC’s production facilities, legal interferences or prohibitions, fires, strikes or other labor difficulties, wars or hostilities, insurrections or riots, embargoes, equipment breakdown, wrecks or delays in transportation, unusually severe weather, inability to obtain necessary labor, material or manufacturing facilities due to reasons beyond its control, or any like or dissimilar cause beyond its control. In the event of such delay, the date of delivery shall be extended for a period equal to the time lost by reason of delay. ITC shall have the right to furnish suitable substitutes for materials which cannot be obtained because of the above causes and to apportion its shipments among its customers in such manner as it shall deem equitable.
7. WARRANTY: ITC warrants that the products delivered hereunder will be in substantial conformity with specifications furnished by Buyer and accepted by ITC and free from defects in material and workmanship. ITC’s obligation under this warranty shall be limited to (at its option) repairing, replacing or granting a credit at the prices invoiced at the time of shipment of any said products which shall within 90 days be returned to the factory, per the “Adjustments” clause, and which are, after inspection, disclosed to ITC’s satisfaction to have been defective in the form in which they were shipped by ITC before their use. This warranty shall not apply to any such products which shall have been repaired or altered, except by ITC, or which shall have been subject to physical or electrical abuse or misuse, including use of a lamp and ballast combination not approved by ITC in writing. Other than as set forth above, there are no express or implied warranties, including that of merchantability and fitness, made by ITC in respect to any products sold hereunder.
8. ADJUSTMENTS: When a Buyer wishes to return products, under the “Warranty” clause, he shall first obtain written approval from ITC. Following receipt of such approval, shipment may be made via the route specified in such approval, freight pre-paid by the Buyer. The package in which products are returned must be able to withstand normal freight handling and include a packing list stating the quantities and types of products being returned, the invoice number of the original shipment and the reason for return. Upon receipt ITC will inspect the returns by appropriate means and notify Buyer of its decision regarding ITC responsibility. Returns found to be ITC’s responsibility under the warranty set forth hereinabove will be repaired, replaced or credited to the Buyer at ITC’s option. Returns found to be serviceable without defect will be returned to the Buyer collect.
9. LIMITATION OF LIABILITY: ITC shall not be liable for special or consequential damages of any nature with respect to any product or services sold hereunder. Buyer agrees to indemnify and hold ITC harmless from any such claims.
10. PATENTS AND TRADEMARK INDEMNITY: ITC assumes no consequential or other liability for, and the Buyer agrees to indemnify and hold ITC harmless against any claims (including attorneys fees) resulting from the production of articles or materials which are manufactured by ITC to the Buyers specification or from the production of articles designed by ITC to meet the Buyers requirements or arising out of the use of any equipment, materials, parts or machinery furnished by the Buyer in making products to the Buyers specifications. Furthermore, ITC assumes no consequential or other liability for, and the Buyer agrees to hold ITC harmless from, infringement of patent claims covering any equipment, assembly, system, circuit, or combination in which any such products maybe used as a component, or from any trademark infringements involving any marking or branding not applied by ITC or involving any marking or branding applied at the request of the Buyer. No costs or expenses under this paragraph shall in any event be incurred for the account of ITC without its written consent.
11. SALES CONVEYS NO LICENSE: ITC products are offered for sale and sold subject to conditions that such sales do not convey any license expressly or by implication, estoppel, or otherwise, under patent claim with respect to which ITC can grant license covering a completed equipment or assembly, system, circuit, combination, method of process in which such products which are used as components (notwithstanding the fact that such products may have been designed for use in, or in any way may be useful in, such patented equipment, assembly, system, circuit combination, method or process, and that such products may have been purchased and sold for such use). ITC expressly reserves all such rights under such patent claims.
12. CHANGES: Buyer shall have the right (by written change order) to request a change to product specifications, delivery dates, quantities and/or delivery schedules, provided, however, that prior to the implementation any such change(s), such changes shall be subject to written acceptance by ITC and an equitable adjustment to the contract price and/or delivery schedule, as appropriate, shall be made.. A reduction in order quantity may result in an increase in the per unit price including loss of volume of other discounts that may have been originally applied.
13. TOOLING, DIES, TEST FIXTURES, DRAWINGS, ETC:
a. Unless otherwise specifically agreed upon in writing between the Buyer and ITC, all tooling, dies, test fixtures, and all drawings of every kind (hereinafter referred to as “Tooling”) used by ITC in, and not owned by Buyer prior to the performance of the Buyers order, shall remain the exclusive property and under the exclusive control of ITC and shall not be delivered to the Buyer.
b. Any Tooling sold to the Buyer is sold “AS IS” without any warranties whatsoever and Buyer agrees to indemnify ITC against all claims arising out of the use of such Tooling.
14. BUYER’S MATERIAL: Orders requiring the use of the Buyer’s raw material components, and or equipment are accepted subject to the delivery of material, component and/or equipment, at the time, in the amount, and in dimensions as specified by ITC, FOB its plant. If any of the material, components and/or equipment is defective or will not perform to ITC’s requirements for any reason, ITC may cancel Buyer’s order without incurring liability, and the Buyer shall pay for costs per the termination section hereunder. Scrap resulting from fabrication of the Buyer’s products shall be the property of ITC unless otherwise agreed upon in writing. It shall be the Buyer’s responsibility to furnish raw material, components and/or equipment acceptable to ITC and if it is necessary to inspect, gage or rework, it will be upon the Buyer’s approval at the Buyer’s expense.
15. COMPLIANCE WITH LAWS: ITC does not assume any liability for the Buyer’s or the products’ compliance with any federal, state or local laws or regulations. The Buyer will indemnify and hold ITC harmless from any claims, damages, and expenses associated with any product recall.
16. TERMINATION: Any order may be terminated by the Buyer upon less than thirty (30) days prior written notification to ITC, subject to the following conditions:
a. Buyer will accept delivery of, and pay for, all products that are completely manufactured as of the effective date of termination.
b. The Buyer will pay any costs, direct or indirect, which have been incurred by ITC with regard to products which have been completely manufactured at the effective date of termination, and a reasonable profit thereon. Such costs include, but are not limited to: all material and work-in-process in inventory for use in the product including all associated costs; vendor cancellation charges for cancelled material for the product; material for the product which ITC is obliged to accept after cancellation, start-up, preparation and shut-down costs; and any capital equipment bought and used specifically for the order in question which becomes excess due to cancellation.
c. Notwithstanding the foregoing, the total of all items for which Buyer is liable, including products shipments and (A) and (B) above shall not exceed the total contract price of the order.
17. ORDERS: These terms and conditions shall be deemed included as part of any order or orders placed with ITC. Purchase orders containing language which modifies, adds to, or is in any way inconsistent with ITC’s Standard Terms of Quotation and Sale as contained herein are accepted by ITC only on the express condition that any such language in such purchase orders shall be inoperative, and that the liabilities of ITC shall be determined solely by ITC’s Terms and Conditions of Sale. No terms and conditions other than those stated herein and no written or oral agreement that purports to vary these terms and conditions shall be binding upon ITC unless specifically agreed to n writing by an officer of ITC.
18. CUSTOM PRODUCTS: For products ordered that are not in our standard catalogue, ITC may revise the ship quantity by +/- 5%.
19. AMENDMENT OF TERMS: These terms and conditions of sale are subject to withdrawal or change by ITC at any time. Until modified or withdrawn, the terms and conditions herein will govern unless specifically changed in writing by an officer of ITC.