- These terms and conditions shall be incorporated in and become a part of any agreement between Buyer and Seller relating to the Products identified or described on the face hereof. No other terms, conditions, agreements or warranties, whether contained in Buyer's purchase order form or otherwise, shall be binding on Seller except to the extent such other terms are typed or handwritten in full (and not merely printed or incorporated by reference) in a document signed by the president or a vice president of Seller. The rights and duties of Buyer, of any other person claiming through or under Buyer and of Seller, with respect to the sale, delivery, installation and use of the Products, will be governed by these terms and conditions and the laws of the Commonwealth of Massachusetts.
- All prices quoted unless otherwise noted by Seller are f.o.b. Waltham, Massachusetts and exclude sales and use taxes and transportation and insurance charges, all of which will be borne by Buyer. All quotations are made for acceptance at Seller's home office in Massachusetts within thirty (30) days of the date thereof and are subject to change during that period. Prices may be increased by Seller in the event and to the extent of any substantial increase after the date of Seller's quotation in the cost to Seller of any materials, labor, services, duties or other expenses beyond Seller's reasonable control.
- Seller shall have the continuing right to review Buyer's credit and at any time (without prior notice) to require full payment in advance, progress payments, satisfactory security or a guarantee of prompt payment. United States government contracts or subcontracts are subject to regulations then existing concerning termination and payment.
- Invoices are due and payable in full in prime U.S.A. bank funds within thirty (30) days of the invoice date. On any invoice not paid when due, interest shall accrue at the rate of one (1%) percent per month commencing the 31st day after the date of each invoice concerned. Should any portion of any invoice be disputed, undisputed portions of the invoice and other invoices not in dispute shall nevertheless be paid when due without offset. If any payment is not made when due, Seller may defer the performance of any further work for Buyer on any contract until all outstanding bills have been paid, without liability to Seller, and Buyer shall remain liable for any and all work performed by Seller, including loss of reasonable profits.
- In the event any payment hereunder is not made when due, Buyer hereby grants to Seller a security interest in the products, which security interest shall extend to all parts or accessories now or hereafter attached to the Products, and the proceeds therefrom. Buyer hereby agrees to perform all acts necessary to perfect Seller's security interest. Seller shall have all the rights and remedies of a secured party under the Uniform Commercial Code and, if the account is placed for collection, Buyer agrees to pay Seller's reasonable attorney's fees.
- Seller shall not be liable for any loss or damage to the Products while in transit. Claims for shortages must be presented in writing within ten (10) days from receipt of the Products.
- Seller shall not be liable for any delay affecting delivery. Shipment dates are approximate and are based on Seller's best judgment as to Seller's ability to fulfill an order, but Seller assumes no liability therefor.
- Any specifications covering the Products furnished to Buyer may be modified by Seller in the details of design and construction of the Products actually shipped if, in Seller's judgment after consultation with Buyer, the change constitutes an improvement. Except for such laws, codes and regulations as are specified in the agreement, Seller is not responsible for compliance by the Products with any national, state or local governmental laws, codes or regulations applicable to the design, fabrication or use of the Products.
- Seller agrees to hold Buyer harmless from all liability, including expenses and costs in connection with all suits and claims, on account of the use in the Products of any invention covered by a United States patent, except where infringement or alleged infringement is the direct and necessary consequence of compliance with Buyer's specifications, in which case Buyer extends the foregoing indemnity to Seller with respect thereto. Buyer and Seller shall promptly notify the other in writing of any claim for infringement to which this clause shall apply. Indemnity provided herein does not extend to infringement by processes unitizing the Products.
- SELLER WARRANTS THAT THE PRODUCTS ARE FREE FROM DEFECTS OF WORKMANSHIP OR MATERIAL; ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR MERCHANTABILITY AND FITNESS, ARE EXCLUDED. ALL USED PRODUCTS ARE SOLD "AS IS, WHERE IS". BUYER ASSUMES FULL RESPONSIBILITY FOR CORROSION AND EROSION OF THE PRODUCTS AFTER SHIPMENT BY SELLER. In the event Seller delivers nonconforming goods or parts, Seller will be liable only to repair or replace, at Seller's option, such nonconforming goods or parts, f.o.b. Seller's factory, provided the nonconformity is proved to Seller's satisfaction within one year from the date of original shipment. Seller will not be liable for any repairs made outside Seller's factory without Seller's prior authorization confirmed in writing. ANY PRODUCT OF SELLER'S DESIGN DELIVERED HEREUNDER SHALL BE DEEMED TO BE CONFORMING IF IT FALLS WITHIN A REASONABLE RANGE OF SPECIFICATIONS (e.g., 20% FOR FEED RATE, PERFORMANCE, YIELD OR QUALITY OF MATERIAL PROCESSED).
- IN NO EVENT WILL SELLER BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES TO ANY PROPERTY OR ANY PERSON IN CONNECTION WITH THE SALE, DELIVERY, INSTALLATION OR USE OF THE PRODUCTS, AND BUYER AGREES TO INDEMNIFY AND HOLD SELLER HARMLESS AGAINST SUCH DAMAGES.
- Unless otherwise specifically provided, any cost or expense incurred in connection with testing, starting-up or placing in operation of any of the Products is for Buyer's account and Seller assumes no responsibility whatsoever for any costs, expenses, loss of profits or other damages incurred in connection therewith. Any oral technical advice furnished by Seller before or after delivery with regard to installation or use of the Products represents Seller's best judgment under the circumstances, but Seller assumes no liability therefor.
- Buyer may make reasonable shop inspection of materials before shipment, provided Buyer reimburses Seller for any additional costs or expenses to Seller. Buyer shall indemnify and hold Seller harmless from any injury to Buyer's employees, agents or property related to any inspection or pilot plant operation.
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