PRECITECH, AMETEK SALES AGREEMENT GENERAL TERMS AND CONDITIONS
1. Agreement; Acceptance of Orders. The terms and conditions set forth herein, together with such terms and conditions as are set forth on the face of any quotation, order confirmation or similar document by Precitech, Ametek, (collectively, the "Agreement") constitute Precitech, Ametek,'s acceptance of all orders, and all offers and sales by Precitech, Ametek are subject to and expressly conditioned upon the purchaser's assent to such terms and conditions and shall constitute the entire Agreement between Precitech, Ametek and purchaser. Any of purchaser's terms and conditions that are different from or in addition to those referred to above are objected to by Precitech, Ametek and shall be of no effect unless specifically agreed to in writing by Precitech, Ametek. Commencement of performance or shipment shall not be construed as acceptance of any of purchaser's terms and conditions that are different from or in addition to those contained in this Agreement. If a contract is not earlier formed by mutual agreement in writing, acceptance by purchaser of products or services furnished by Precitech, Ametek, pursuant hereto shall be deemed consent to all of the terms and conditions referred to herein. This Agreement shall be deemed accepted in, and shall be construed and enforced in accordance with the laws of, the State of Hew Hampshire as if made and to be performed entirely within such state.
2. Prices. The prices stated in this Agreement do not include transportation, insurance or any sales, use, excise or other taxes, duties, fees or assessments imposed by any jurisdiction except to the extent specifically set forth herein. All applicable taxes will be paid by purchaser, unless purchaser provides Precitech, Ametek with appropriate tax exemption certificates. Any taxes at any time paid by Precitech, Ametek that are to be paid by purchaser hereunder shall be invoiced to purchaser and reimbursed to Precitech, Ametek. All prices and other terms are subject to correction for typographical or clerical errors.
3. Terms of Payment. Purchaser shall pay for products in cash upon delivery, unless an earlier or later time for payment is specified in Precitech, Ametek's quotation or order confirmation, in which case payment shall be due at the time so specified. Each shipment shall be considered a separate and independent transaction and payment for each shipment shall be due accordingly. Precitech, Ametek, may, at its option, elect to extend credit to purchaser. If Precitech, Ametek extends credit to purchaser, invoices will be issued upon shipment and payment shall be due in full within the credit terms so extended by Precitech, Ametek. Precitech, Ametek reserves the right to change the amount of or to withdraw any credit extended to purchaser.
4. Delivery, Title and Risk of Loss. Products shall be shipped F.O.B. [Ex-works (Incoterms, 2000)] Precitech, Ametek's manufacturing facilities or such location as otherwise specified in the applicable Precitech, Ametek quotation or order confirmation to any location designated by purchaser (subject to Section 14) and shall be deemed delivered to purchaser when delivered to the transportation company at the shipping point. Unless otherwise agreed in writing by Precitech, Ametek, all transportation charges and expenses shall be paid by purchaser, including the cost of any insurance against loss or damage in transit that Precitech, Ametek may obtain. Precitech, Ametek reserves the right to ship products freight collect.
Title and risk of loss and/or damage to products shall pass to purchaser upon delivery of the products to the transportation company at the shipping point. Confiscation or destruction of or damage to products shall not release, reduce or in any way affect the liability of purchaser. In the event purchaser rejects or revokes acceptance of any products for any reason, all risk of loss and/or damage to such products shall nonetheless remain with purchaser unless and until the same are returned at purchaser's expense to such place as may be designated by Precitech, Ametek in writing.
All products must be inspected upon receipt and claims filed by purchaser with the transportation company when there is evidence of shipping damage, either concealed or external.
5. Performance. Precitech, Ametek will make a reasonable effort to observe the dates specified in its quotation and its order confirmation or such later dates as may be agreed to by purchaser for delivery or other performance, but Precitech, Ametek, shall not be liable for any delay in delivery or failure to perform due to strike, lockout, riot, war, fire, act of God, accident, delays caused by any subcontractor or supplier or by purchaser, technical difficulties, failure or breakdown of machinery or components necessary to order completion, inability to obtain or substantial rises in the price of labor or materials, curtailment of or failure to obtain sufficient electrical or other energy supplies, or compliance with any law, regulation, order or direction, whether valid or invalid, or any governmental authority or instrumentality thereof, or due to any unforeseen circumstances or any causes beyond its control, whether similar or dissimilar to the foregoing and whether or not foreseen. As used herein, "performance" shall include, without limitation, fabrication, shipment, delivery, assembly, installation, testing and warranty repair and replacement, as applicable. Purchaser agrees that such delay in delivery or failure to deliver or perform any part of this Agreement shall not be grounds for purchaser to terminate or refuse to comply with any provisions of this Agreement and no penalty of any kind shall be effective against Precitech, Ametek for delay or failure; provided, however, that if the delay or failure extends beyond six (6) months from the originally scheduled date either party may, with written notice to the other, terminate this Agreement without further liability.
6. Acceptance. All products delivered hereunder shall be deemed accepted by purchaser as conforming to this Agreement, and purchaser shall have no right to revoke any acceptance, unless written notice of the claimed nonconformity is received by Precitech, Ametek within twenty (20) days of delivery thereof. Notwithstanding the foregoing, any use of a product by purchaser, its agents, employees, contractors or licensees, for any purpose, after delivery thereof shall constitute acceptance of that product by purchaser.
7. Default and Termination. Purchaser may terminate this Agreement if Precitech, Ametek materially defaults in the performance of its obligations hereunder and fails to cure such default within thirty (30) days after written notice thereof from purchaser. Such termination shall be purchaser's sole remedy in the event of a default by Precitech, Ametek. Purchaser shall be deemed in material default under this Agreement if purchaser fails to pay any amounts when due hereunder, cancels or attempts to cancel this Agreement prior to delivery or refuses delivery or otherwise fails to perform its obligations hereunder or fails to pay Precitech, Ametek any amounts due under any other agreement or otherwise. In the event of a material default by purchaser, Precitech, Ametek may, upon written notice to purchaser, (1) complete any work in process and thereafter purchaser shall be responsible for payment of all products produced by Precitech, Ametek pursuant to this Agreement, (2) suspend its performance and withhold shipments, in whole or in part, (3) terminate this Agreement, (4) declare all amounts owing to Precitech, Ametek immediately due and payable and/or (5) recall products in transit, retake same and repossess any products held by Precitech, Ametek for purchaser's account, without the necessity of any other proceedings, and purchaser agrees that all products so recalled, taken or repossessed shall be the property of Precitech, Ametek provided that purchaser is given credit therefore. Exercise of any of the foregoing remedies by Precitech, Ametek shall not preclude exercise of any of the others, and neither the existence nor exercise of such remedies shall be construed as limiting, in any manner, any of the rights or remedies available to Precitech, Ametek under the Uniform Commercial Code or other laws.
8. Patents and Other Intellectual Property Rights. The sale of products or provision of services hereunder does not convey any express or implied license under any patent, copyright, trademark or other proprietary rights owned by Precitech, Ametek, whether relating to the products sold or any manufacturing process or other matter. All rights under any such patent, copyright, trademark or other proprietary rights are expressly reserved by Precitech, Ametek.
Precitech, Ametek will defend any suit or proceeding brought against purchaser insofar as such suit or proceeding is based on a claim that the design or manufacture of products furnished hereunder which were manufactured solely to Precitech, Ametek's designs and specifications infringe any U.S. patent, provided Precitech, Ametek is promptly notified in writing of such suit or proceeding and is given full authority, information and assistance by purchaser for such defense. Precitech, Ametek will pay all damages and costs based on such claim of infringement which are finally awarded against purchaser in any such suit or proceeding or paid by way of settlement, but Precitech, Ametek shall have no liability whatsoever with respect to any settlement made by purchaser without Precitech, Ametek's prior written consent, which Precitech, Ametek may withhold in its sole discretion. If such products are held to infringe any U.S. patent and their use or sale enjoined, or if in the opinion of Precitech, Ametek such products are likely to become the subject of such a claim of infringement, Precitech, Ametek may, in its sole discretion and at its own expense, either procure a license which will protect purchaser against such claim without cost to purchaser, replace such products with non-infringing products, or require return of such products and refund an equitable portion of the price paid by purchaser to Precitech, Ametek for such products.
The foregoing states Precitech, Ametek's sole liability for any claim based upon or related to any alleged infringement of any patent or other intellectual property rights. Precitech, Ametek shall have no liability for any claim of infringement that is based on a combination of products furnished under this Agreement with products, equipment or materials not furnished hereunder, or based upon any items made with the products furnished under this Agreement.
Purchaser shall defend and hold Precitech, Ametek harmless against any expense, loss, costs or damages resulting from any claimed infringement of patents, trademarks or other intellectual property rights arising out of compliance by Precitech, Ametek with purchaser's designs, specifications or instructions.
9. Limited Warranty. Precitech, Ametek's standard limited warranty is applicable to each product sold pursuant to this Agreement. Such standard limited warranty is provided upon shipment of the products purchased pursuant to this Agreement; a copy of Precitech, Ametek's standard limited warranty is available upon request. The standard Precitech, Ametek limited warranty is exclusive and is given and accepted in lieu of any and all other warranties, express or implied, including without limitation warranties of merchantability and fitness for a particular purpose, and the remedies provided therein are given in lieu of all other remedies including, without limitation, incidental and consequential damages.
10. LIMITATION OF LIABILITY AND CLAIMS. PRECITECH, AMETEK'S AGGREGATE LIABILITY IN DAMAGES OR OTHERWISE SHALL IN NO EVENT EXCEED THE AMOUNT, IF ANY, RECEIVED BY PRECITECH, AMETEK'S HEREUNDER. IN NO EVENT SHALL PRECITECH, AMETEK'S BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL LOSS OR DAMAGES OF ANY KIND, HOWEVER CAUSED, OR ANY PUNITIVE, EXEMPLARY OR OTHER DAMAGES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR PRODUCTS OR SERVICES FURNISHED BY PRECITECH, AMETEK MAY BE BROUGHT BY PURCHASER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.
11. Entire Agreement. This Agreement constitutes the entire agreement of the parties and supersedes all prior negotiations, proposals, agreements and understandings, whether oral or written, relating to the products to be purchased hereunder or otherwise relating to the subject matter of this Agreement. Any representation, warranty, course of dealing or trade usage not expressly contained or referenced herein shall not be binding on Precitech, Ametek.
12. Attorney's Fees. In the event of default in payment of the purchase price or any part thereof, purchaser agrees to pay Precitech, Ametek's expenses, including reasonable attorney's fees and expenses, incurred by Precitech, Ametek in enforcing payment thereof.
13. Assignment. Purchaser shall not assign or transfer any rights or claim under this Agreement without the prior written consent of Precitech, Ametek and any purported assignment made without such consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assigns of the parties.
14. Export Control. Purchaser shall comply fully with all export administration and control laws and regulations of the U.S. government as may be applicable to the export, resale or other disposition of any products purchased from Precitech, Ametek.
15. General. If the products purchased from Precitech, Ametek are to be used in the performance of a U.S. government contract or subcontract, no government requirements or regulations shall be binding upon Precitech, Ametek unless specifically agreed to by Precitech, Ametek in writing.
No modification, amendment, rescission, waiver or other change in this Agreement shall be binding on Precitech, Ametek unless agreed to in writing by Precitech, Ametek's authorized representative.
The invalidity or unenforceability, in whole or in part, of any provision herein shall not affect the validity or enforceability of any other provision herein. Failure or delay on the part of either party to exercise any right, power, privilege or remedy herein, except as otherwise provided in this Agreement, shall not constitute a waiver thereof.
The section headings contained herein are for convenience of reference only and are not to be used in the construction or interpretation of this Agreement.
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