These Terms and Conditions of Sale (“Terms and Conditions”) constitute the complete, exclusive, and fully integrated statement of terms and conditions between the Buyer and Seller with regard to the matters contained herein, and shall be incorporated into any quotation, proposal, or purchase order, and any purchase, sales or confirmation order acknowledgment (collectively, “Order”), for the sale of goods between Buyer and Seller.
All refences in this document to “Seller” shall be INGETEK USA, LLC. All references in this document to “Customer” include all parent(s), subsidiaries and affiliates of the entity placing the order. Customer and Seller may be referred to individually as a “Party” and collectively as the “Parties”.
All sales to Customer regarding the Goods and services provided by Seller (“Goods”) are subject to this Terms and Conditions of Sale, which shall prevail over any additional or inconsistent terms of Customer’s purchase order or other Customer, despite the date of issuance of such document. This Terms and Conditions are subject to change at any time at the sole discretion of Seller. Customer’s assent to this Terms and Conditions shall be conclusively presumed from Customer’s (1) receipt of Seller’s order acknowledgment without written objection sent to Seller within ten (10) days after receipt of the order acknowledgement or accepted purchase order, (2) instructing Seller to begin work or to ship any of the Goods, or (3) acceptance of all or any part of the Goods ordered. Seller’s acceptance of Customer’s purchase order or commencement of performance shall not constitute acceptance of any of Customer’s terms and conditions.
Unless otherwise expressly agreed by the Parties, Customer shall pay all invoiced amounts within thirty (30) days from the date of Seller’s invoice. In the event that Customer fails to do so or fails to make any payment in full within the time period agreed by the Parties, such failure will constitute a material breach of contract by Customer without any demand or notice of default being required permitting Seller to suspend or cancel any scheduling, production, shipment, or delivery of goods under this contract, without any liability to or further obligation of Seller. Customer shall pay to Seller interest on any unpaid amount at the rate of 1.5% per month or the maximum rate permitted by law, whichever is more.
4. Security Interest.
As security for all amounts due to Seller, Customer grants to Seller a security interest in all equipment, supplies, merchandise, inventory, and other goods purchased from Seller and in the proceeds and products thereof; and Customer hereby authorizes Seller to file Uniform Commercial Code financing statements to perfect such security interest. Seller’s security interest will be junior to any conflicting security interest which has been perfected by the proper filing of a Uniform Commercial Code Financing statement prior to the proper filing by Seller of a Uniform Commercial Code financing statement.
5. Acceptance of the Goods.
All sales to Customer are final. Customer must obtain Seller written authorization before returning any Goods. In accordance with the rights and remedies available under Article 2 of the Uniform Commercial Code, Customer shall have the right to reject any goods delivered by Seller to Customer subject to this Terms and Conditions by providing written notice to Seller within ten (10) days of receipt of the Goods by Customer. If Customer does not notify Seller of said rejection of Goods within ten (10) day period stipulated herein, Customer shall be deemed to have accepted the goods.
SELLER WARRANTS THAT THE GOODS FURNISHED HEREUNDER WILL BE FURNISHED IN ACCORDANCE WITH THE SPECIFICATIONS SET FORTH OR INCORPORATED BY EXPRESS REFERENCE ON THE FACE OF ANY ORDER ISSUED BY SELLER THAT INCORPORATES THESE TERMS AND CONDITIONS BY REFERENCE, AND IF NO SPECIFICATIONS ARE SO STIPULATED, THE GOODS SHALL BE SOLD ON AN AS-IS BASIS. THE WARRANTY SET FORTH IN THE PRECEDING SENTENCE SHALL AUTOMATICALLY EXPIRE ONE HUNDRED AND EIGHTY DAYS AFTER THE DELIVERY OF SUCH GOODS TO OR ON BUYER’S BEHALF., SELLER MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER SHALL UNDER NO CIRCUMSTANCES BE LIABLE FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES REGARDLESS OF THE CAUSE.
7. LIMITATION OF LIABILITY.
SELLER’S LIABILITY, WHETHER IN CONTRACT, IN TORT, UNDER WARRANTY, IN NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OF THE GOODS AGAINST WHICH CLAIM IS MADE, AND UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN ADDITION TO THE FOREGOING, SELLER SHALL NOT BE RESPONSIBLE FOR ANY COST SUCH AS SORTING, SAMPLING, STORAGE, FREIGHT, ADDITIONAL PROCESSING, CONSEQUENTIAL COSTS, ADMINISTRATIVE OR REPLACEMENT COST UNLESS PRE-APPROVED IN WRITING AND ALLOWED BY SELLER PRIOR TO INCURRING THE EXPENSE.
Buyer shall indemnify, defend, and hold Seller its officers, directors, employees and agents harmless from any and all costs (including attorneys’ and accountants’ fees and expenses), liabilities and damages resulting from or related to any third party (including Buyer’s employees) claim, complaint and/or judgment arising from Buyer’s use of any Goods furnished hereunder, as well as any negligent, intentional or tortious act or omission of Buyer or any breach by Buyer of these Terms.
9. Title and Risk of Loss.
Unless otherwise expressly agreed by the Parties, risk of loss shall pass to Buyer upon tender of delivery at Seller's plant before loading and in case of the use of Incoterms, risk of loss shall pass in accordance with the applicable Incoterm. Title to the Goods shall pass to Buyer upon Seller’s receipt of full payment for the goods, including payment of all applicable taxes payable by the Buyer under this contract.
10. Force Majeure.
Except for payment obligations, neither party shall be liable for any failure of performance hereunder where such failure or delay has been occasioned by fire, floods, earthquakes, embargo, strikes, pandemics, epidemics, closing of international borders, wars, accidents, acts of God, voluntary or involuntary compliance with any valid or invalid law, or regulation of any governmental agency or authority, or other causes beyond the reasonable control of said party. Upon a force majeure event, Seller shall have additional time in which to perform this contract as may be reasonably necessary under the circumstances. In addition, if due to a force majeure event or any other cause, Seller is unable to produce sufficient goods to meet all demands from customers and internal uses, Seller shall have the right to allocate production among its customers and plants in any manner which Seller may determine, acting reasonably.
Invalidity of any of the set forth in this Terms and Conditions will not affect the validity of any other provision and the remaining provisions will remain in full force and effect.
12. Law and venue.
This Terms and Conditions shall be governed and construed per Texas laws. The Parties agree that any legal proceeding arising out of or relating to this Terms and Conditions, including with regard to the enforcement or interpretation of, shall be exclusively brought in the state or federal courts located in Dallas, Texas. Each Party hereby irrevocably submits itself to the exclusive jurisdiction of any such courts and waives any objection it may now or hereafter have to the venue in any such courts, and the assertion of personal jurisdiction over each party by such courts. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this agreement. The Parties waive all rights to jury trials.
These Terms and Conditions shall survive termination, cancellation, or completed performance of any sale as long as necessary to allow the aggrieved Party to fully enforce its rights.