1. ACCEPTANCE. TRUMPF Huettinger Inc. (“Seller”) makes all quotations and accepts orders only on the terms and conditions stated herein. No condition stated by Buyer shall be binding upon Seller if in conflict with, inconsistent with or in addition to the terms and conditions stated herein, unless expressly accepted in a writing signed by Seller. In the event of a conflict or differences in the terms of Buyer’s order form and the terms stated herein, the terms stated herein shall govern.
2. PRICES. All prices are in US dollars and are: (a) Seller’s current prices and are subject to change without notice at any time prior to acceptance of Buyer’s order; (b) subject to all federal, state and local taxes upon the production, sale or shipment of the Goods sold hereunder, now or hereafter becoming effective, and if not included in the invoice, such amount may be invoiced later, and Buyer shall pay all such taxes.
3. Unless otherwise stated in the Seller’s quotation, Seller will ship the Goods under the following standard shipping terms:
SHIPMENTS - DOMESTIC: All orders are FOB Shipment (UCC §2-319) Seller’s plant or such warehousing facilities as Seller may establish.
SHIPMENTS – INTERNATIONAL: All orders are EXW (Incoterms 2010) Seller’s facilities.
All freight charges, insurance premiums, duties and taxes are the responsibility of the Buyer. Goods will not ship until cleared payment of deposit or prepayment in full is received.
4. Unless otherwise stated in the Seller’s quotation, payment terms are as follows:
PAYMENT – UNITED STATES AND CANADA: Net 30 Days from Shipment
PAYMENT – ALL OTHER: 100% Prepaid. Goods will be scheduled for shipment when payment in full is received and cleared in Seller’s account.
Please issue purchase orders and make checks payable to TRUMPF Huettinger Inc.
5. DELIVERY. The scheduled shipment date is an estimate and is subject to filling prior orders and delays caused by force majeure events beyond Seller’s control. Buyer’s acceptance of delivery time from the shipper shall constitute a waiver of any claim for delay. In no event shall Seller be liable for any exemplary, incidental, consequential or lost profits damages arising in connection with delay or nondelivery for any reason.
6. INSTALLATION PREREQUISITES. Buyer shall undertake the following in a timely manner and at its own expense: (a) all excavation and construction work and any other additional work that is outside Seller’s scope of business, including providing technical and supplemental personnel, building materials and tools required for that purpose; (b) the utility items and materials required for installation and the start of operation, such as scaffolding, lifts and other equipment, fuels and lubricants; (c) power and water at the operation site, including the connections, heating and lighting; (d) sufficiently large, dry and lockable areas at installation site for storage of machine parts, devices, materials, tools, etc., and suitable work areas and break areas for the installation personnel, including sanitary facilities appropriate to the circumstances; and (d) protective clothing and safety equipment that are necessary due to special circumstances at the installation site. Buyer shall take the same measures to protect the installation personnel and the property of Seller at the installation site as it would take to protect its own personnel and property.
Buyer is responsible for complying with any federal, state, provincial and/or local electrical, safety, and industrial codes.
7. TITLE; RESERVATION OF SECURITY INTEREST. Passing of title hereunder shall be governed by the title provisions of the Uniform Commercial Code §2-401. Seller hereby reserves a security interest in the Goods (and the proceeds thereof) as security for the payment of the unpaid balance of the purchase price and Buyer’s performance of its other obligations hereunder. Buyer shall not pledge or assign or permit any lien upon the Goods other than that securing Seller’s interest until payment for such Goods is made in full. Buyer will execute and deliver to Seller such Uniform Commercial Code financing statements as Seller shall request in order to perfect such security interest.
8. WARRANTY. Except as otherwise provided herein, any Goods sold hereunder which (1) are in the plant of Buyer, (2) have been properly installed and maintained by authorized persons, and (3) have been operated within the limits of rated and normal usage, are warranted to be free of defects in material and workmanship, as determined by Seller’s inspection, for a period of one year from the date of shipment (unless the warranty period is otherwise stated in Seller’s quotation). Within the warranty period, Seller will repair or replace without cost to Buyer, except for cost of shipping (including return freight prepaid per standard shipping terms), and applicable national, state, or local taxes, including but not limited to duties, custom/brokerage, sales tax, GST, PST, VAT) any product or parts covered by the warranty which Seller finds on inspection to be defective in material or workmanship, provided that Buyer gives the Seller prompt notice. This shall be Seller’s entire liability and the sole and exclusive remedy of the Buyer under this warranty.
Any replaced component within a product repaired by TRUMPF Huettinger is warranted to be free from of defects in material and workmanship for 90 days from shipment, unless stated different in the quotation.
Spare Parts are warranted to be free of defects in materials and workmanship for 90 days. A Spare Part found to be defective within 90 days from delivery to the Buyer will be repaired or replaced with new or refurbished parts by TRUMPF Huettinger at no charge.
Warranty repair or replacement parts under any warranty hereunder are deemed integrated into the Goods and shall not extend the warranty terms of the Goods or any part thereof.
The terms of this warranty do not apply to any Goods which have a life, under normal usages, that is inherently less than one year.
Descriptions, specifications, drawings and other particulars furnished to Buyer are only Seller’s estimate and do not create a warranty. Misuse, abuse, or unauthorized modification or repair voids the warranty.
9. GENERATOR TUBES WARRANTY. For generator tubes, subject to the conditions above, a pro-rated warranty against defects in material and workmanship as recognized by the tubes manufacturer is granted for a period of 2,000 operating hours within twelve (12) months from the date of shipment. If a tube is found on inspection to be defective, a credit is issued on a pro-rated basis for as many hours as remain in the specified number of operating hours. This shall be Seller’s entire liability and the sole and exclusive remedy of Buyer under this warranty.
Buyer must have completed a tube warranty certificate in full to receive warranty coverage. The warranty does not cover tubes that become prematurely unusable due to improper handling, glass breakage, overload, or improper cooling.
To preserve the warranty, Buyer must inspect the tubes for visible damage and filiament breakage immediately upon receipt of shipment, in the presence of the carrier, and to have the carrier certify any damage. It may also be necessary to refuse delivery of any shipment that was damaged in transit.
10. SOFTWARE. If the deliverable includes software, the Buyer is granted a non-exclusive right to use the supplied software, including a provided data medium and its documentation, for use in connection with the specific delivery item. Use of the software on more than one system is not permitted. The Buyer shall not reproduce, revise or translate the software or convert it from object code to source code except as permitted by law. The Buyer shall not remove manufacturing information – including but not limited to copyright notices – or altering it without the prior consent of Seller.
In the current state of technology, error-free software is not possible. Seller warranties that the encoding of the software on the provided media shall be free from defects in materials and workmanship and the software shall substantially conform to its user manual for a period of ninety (90) days from shipment. Seller’s entire liability and Buyer’s sole and exclusive remedy hereunder shall be repair or replacement of the software product or media that does not meet this limited warranty. Without limiting the foregoing, claims for contract rescission or reduction in price are excluded.
The limited software warranty above is voided if (a) the Buyer does not meet minimum hardware and software environment requirements; (b) the software is installed at Buyer’s site on hardware that differs from the hardware specified in the operating instructions, without the express consent of Seller (not to be unreasonably withheld); (c) software other than the software identified by Seller when the software license certificate is issued is installed on the same hardware and Seller demonstrates that this software results in problems with the use of the delivery item; or (d) the Buyer makes modifications to the delivery item without the express prior consent of Seller.
11. DISCLAIMER OF OTHER WARRANTIES: THE WARRANTIES DESCRIBED IN PARAGRAPHS 8 THROUGH 10 HEREOF ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXCLUDED.
12. LIMITATION OF LIABILITY. SELLER’S LIABILITY ON ANY CLAIM(S) OF ANY KIND FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THE PERFORMANCE OR BREACH OF THE TERMS HEREOF, OR FROM THE DESIGN, MANUFACTURE, SALE, DELIVERY, RESALE, INSTALLATION, TECHNICAL DIRECTION OF INSTALLATION, INSPECTION, REPAIR, OPERATION OR USE OF ANY GOODS SOLD OR PROVIDED BY SELLER TO BUYER, SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE GOODS WHICH GIVE RISE TO THE CLAIM. IN NO EVENT SHALL SELLER HAVE ANY LIABILITY FOR EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR LOST PROFITS DAMAGES (INCLUDING BUT NOT LIMITED TO LOST SALES, LOST OPPORTUNITIES, LOST MARKET GROWTH OR LOSS OF FUTURE MARKET SHARE) ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THE PERFORMANCE OR BREACH OF THIS CONTRACT OF SALE OR ANY OTHER DUTY OF THE SELLER WITH RESPECT TO THE GOODS. THE LIMITATION OF LIABILITY SET FORTH HEREIN SHALL OPERATE ON ANY CLAIM(S) OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, INJURY TO PERSONS OR PROPERTY) BASED ON CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. NOTICE OF CLAIMS: Buyer shall inspect the Goods upon receipt and shall notify Seller in writing of any claims including claims for shortage or breach of warranty within 30 days after Buyer discovers or should have discovered facts upon which the claim is based. Failure of Buyer to give written notice of a claim within the time period or in the form here specified shall be deemed to be a waiver of such claim and acceptance of the Goods.
14. LIMITATION OF ACTIONS. No action for breach of any term of this contract of sale or any other duty of Seller with respect to these Goods may be commenced more than one (1) year after shipment of the Goods.
15. INSURANCE. The risk of loss passes to Buyer upon delivery of the Goods to the carrier. Insurance against loss or damage to the Goods during shipment is the responsibility of Buyer. Until the entire purchase price for the Goods is paid in full, Buyer shall insure the Goods in transit and will keep the Goods insured against loss or damage by fire or other risks and hazards included with so-called “extended coverage” insurance, in an amount at least equal to such purchase price. Losses under such insurance shall be made payable to Seller and any payments under such insurance shall be paid to Seller and applied to the unpaid balance of the purchase price. Buyer will furnish Seller with copies of the policies of such insurance and each renewal thereof until payment is made in full. The Buyer shall be responsible for timely filing all claims for damages with the carrier and/or insurer.
16. FORCE MAJEURE. Seller shall not be liable for or will be considered to be in breach of or default under this contract on account of any delay or failure to perform as a result of any causes or conditions that are beyond Seller’s reasonable control and that Seller is unable to overcome through the exercise of commercially reasonable diligence, including by not limited to fire, explosion, flood, storm or other acts of God, war, embargo, strike, riot, or the intervention of any government authority. If any force majeure event occurs, Seller shall give prompt written notice to Buyer and use commercially reasonable efforts to minimize the impact of the event.
17. CANCELLATION. Orders may not be cancelled except by written notice received by Seller prior to shipment. A restocking charge of ten percent of the selling price will be applied for the cancellation of standard items. Charges for the cancellation of special items will be based on non-recoverable expenses accruing to the order sustained by Seller plus ten percent of the selling price.
18. GOVERNING LAW. The validity, interpretation and performance of this contract for sale and any dispute between the Parties arising out of or related to its subject matter, whether sounding in contract, tort or otherwise, shall be governed by the laws of the State of California, excluding such State’s conflict of law principles. This contract excludes the application of the 1980 United Nations Convention on Contracts for the International Sale of Goods.
19. ACCEPTANCE OF ORDERS. All orders are subject to acceptance only at Seller’s facility in Santa Clara, California. All orders sold on credit are subject to approval by Seller’s Credit Department.
20. DESIGN CHANGES. The designs and specification of all Goods sold are subject to change without notice and, in the event of any such changes, Seller will have no obligation whatsoever to make similar changes in Goods previously ordered.
21. WORK AND SAFETY REGULATIONS; INDEMNIFICATION. It is the Buyer’s responsibility to know, understand and comply with the work and safety laws and regulations in effect and governing Buyer’s use of Goods sold hereunder. To the extent governing law requires inspections, records keeping and/or after-purchase modifications to the Goods, it is the responsibility of the Buyer to arrange for and comply with such requirements and any associated costs are the sole responsibility of Buyer. Seller does not by operation of this contract for sale assume any responsibility for or undertake any liability for Buyer’s performance under or compliance with any such laws and regulations. Buyer assumes all risks of and shall indemnify and hold harmless to the fullest extent permitted by law, Seller, and any of its board, officers, employees, parents, subsidiaries, affiliates or agents (the “Indemnitees”) from and against any liability arising from any after-purchase actions of Buyer, including without limitation, any injury, disability or death of workers or employees caused by or in any manner incurred because of misuse, abuse, modification or unauthorized repair of Goods after delivery. BUYER’S OBLIGATION HEREUNDER IS IN NO WAY LIMITED BY ANY PROTECTION AFFORDED IT UNDER WORKER’S COMPENSATION ACTS, DISABILITY BENEFITS ACTS, OR OTHER EMPLOYEE BENEFITS ACTS.
22. DISPOSAL; INDEMNIFICATION. Buyer assumes all obligation to dispose of the Goods at its own expense and in accordance with applicable law and regulation after termination of use. Seller does not by operation of this contract assume any responsibility for Buyer’s performance under or compliance with any such laws and regulations. To the full extent permitted by law, Buyer shall require by contract that any commercial third party to whom it grants possession of the Goods dispose of it properly in accordance with applicable law and regulation after termination of use and that they impose a corresponding obligation in the event of another change of possession. Buyer assumes all risks of and shall indemnify and hold harmless the Indemnitees from and against any costs (including reasonable attorneys fees) and liability arising from any after-purchase disposal of the Goods.
23. NONPAYMENT OF PURCHASE PRICE: COLLECTION COSTS: If Buyer shall not pay the full purchase price within 30 days from the date of shipment of the Goods, Buyer will pay Seller thereafter an additional one and one-half percent (1-1/2%) per month on the unpaid balance of the purchase price until paid in full. Such charge shall be added to and become an additional part of the purchase price for the Goods. Buyer also will pay all costs of collection incurred by Seller in collecting the purchase price for the Goods and enforcing its security interest in the Goods, including, without limitation, reasonable attorneys’ fees and expenses incurred by Seller.