THESE STANDARD TERMS AND CONDITIONS APPLY TO ALL PURCHASES WHETHER OR NOT SUCH PURCHASE IS SUBJECT TO A SIGNED PURCHASE ORDER AGREEMENT OR DISTRIBUTION AGREEMENT BETWEEN PROMICEEN AND THE PURCHASER.
PAYMENT TERMS AND INSTRUCTION
Unless otherwise stated in Manufacturer's invoice or agreed to by the parties, orders shall be fully prepaid before shipping. The terms of payment are also subject to review of Purchaser's credit by Manufacturer. Unless otherwise agreed to by Manufacturer, payment shall be by wire transfer to Manufacturer's account at a commercial bank Manufacturer shall designate, by check to be drawn on Purchaser's corporate account, or by Manufacturer's draw upon a bank letter of credit satisfactory in form and substance to Manufacturer. All payments by Purchaser shall be made in United States Dollars and shall be paid fully, without set-off, deduction or counterclaim.
TAXES AND GOVERNMENTAL CHARGES
Prices do not include any taxes or other governmental charges, including, without limitation, value-added, sales, use or privileges taxes, or excise or similar taxes levied by any government, now or hereafter enacted. In Manufacturer's discretion, any such taxes and charges may be added to the price for any products or may be billed separately. The Purchaser will, in any event, pay all such taxes and charges, on or before their due dates. In the event Manufacturer is required at any time to pay any such tax or charge, the Purchaser will reimburse Manufacturer promptly on demand. If any governmental agency requires Purchaser to withhold any portion of the gross payment due to Manufacturer, then such payment shall be increased by an amount such that the amount actually remitted to Manufacturer is equal to the amount that would have been remitted had there been no such withholding.
If the Purchaser fails to pay the price or any other payment due to Manufacturer promptly and when due, Manufacturer may recover, in addition to the price or payment, interest thereon at a rate equal to the lesser of 1-1/2% per month and the maximum rate of interest allowable under applicable law.
SHIPMENT AND DELIVERY
Dates of all shipments are estimated and not guaranteed. All products will be tendered and shipped F.O.B. Manufacturer's plant or warehouse and may be so tendered in several lots. In the absence of specific instructions, Manufacturer will select the carrier and ship freight prepaid and added to the price of the relevant Product (except that surface freight for non-expedited orders in excess of $10,000 will be paid by Manufacturer). In cases where Purchaser, for any reason, requests deliveries of Products on a basis that is not in conformity with Manufacturer's standard shipping procedures, Purchaser shall be responsible for all such costs associated with premium freight and any resulting overtime required in order to make deliveries in conformance with Purchaser's required delivery schedule. Manufacturer will not be deemed to assume any liability in connection with any shipment because of the selection of a carrier or its failure to obtain insurance. Title and risk of loss or damage to each of the Products will pass to the Purchaser when delivery is made to the possession of the carrier.
Manufacturer will make a reasonable effort to observe the dates specified herein or such later dates as may be agreed to by Purchaser for delivery or other performance, but Manufacturer shall not be liable for any delay in delivery or failure to perform due to acceptance of prior orders, strike, lockout, riot, war, fire, act of God, accident, delays caused by any subcontractor or supplier or by Buyer, technical difficulties, failure or breakdown of machinery or components necessary for order completion, inability to obtain or substantial rises in the price of labor or materials or manufacturing facilities, 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, of any governmental authority or instrumentality thereof, or due to any circumstances or any causes beyond its reasonable 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 any delay in delivery or failure to deliver or perform any part of this Order shall not be grounds for Purchaser to terminate or refuse to comply with any provisions hereof and no penalty of any kind shall be effective against Manufacturer for such 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 Order without further liability for the unperformed part of this Order.
CONFIDENTIALITY AND INTELLECTUAL PROPERTY
Any technical, financial or other information provided by Manufacturer to Purchaser and designated as confidential or proprietary (“Confidential Information”) shall be held in confidence and not disclosed or, except as provided in the next sentence, used by Purchaser . This obligation will not apply to information that is generally and freely publicly available through no fault of Purchaser , or that Purchaser otherwise rightfully obtains from third parties without restriction.
Manufacturer warrants that each Product will be free from any defects in materials and workmanship which cause the Product to fail to operate in accordance with the performance specifications set forth in the documentation accompanying the Product or on Pozeen website at http://www.pozeen.com/support/ .The foregoing warranty shall be valid for a period of one to five years from date of Purchaser's purchase (the invoice date) from Manufacturer. If a Product fails to operate in accordance with this warranty, Manufacturer will provide free replacement of the failed Product subject to the limited warranty terms and conditions set forth below.
LIMITED WARRANTY TERMS AND CONDITIONS
Manufacturer's warranty flows only to Purchaser. If any Product covered by this warranty is returned by Purchaser in accordance with Manufacturer's Products Return Policy posted on Manufacturer's web site at http://www.pozeen.com within the warranty period, and upon examination Manufacturer determines to its satisfaction that such Product failed to satisfy this warranty, Manufacturer will, at its option, repair or replace the Product or the defective part thereof, or reimburse Purchaser for the purchase price. For purposes of clarity, "repair or replace the Product or the defective part thereof" does not include any removal or reinstallation costs or expenses, including without limitation labor costs or expenses. If Manufacturer chooses to replace the Product and is not able to do so because it has been discontinued or is not available, Manufacturer may replace it with a comparable product. This limited warranty only applies when the product has been properly wired and installed and operated within the electrical values, operating range and environmental conditions provided in the Specifications. This warranty does not apply to damage or failure to perform arising as a result of any Acts of God or from any abuse, misuse, abnormal use or use in violation of any applicable standard, code or instructions for use including those contained in the latest local electrical codes or safety standards. This Warranty shall become void in the event any repairs or alterations not duly authorized by Manufacturer in writing are made to the Product by any person.
Purchaser shall convey with each Product distributed to end users this LIMITED WARRANTY, and if Manufacturer determines that the appropriate remedy for a defective product is refund of Purchaser's purchase price, Purchaser shall refund to the end user (or arrange for the refund to the end user of) the full purchase price paid by the end user for such defective Product.
THIRD PARTY WARRANTIES
With respect to products sold to the Purchaser by Manufacturer but not bearing the Manufacturer's name or sub-brand name, unless otherwise stated in Manufacturer's invoice or agreed to by the parties, MANUFACTURER MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, but will make available to the Purchaser upon request but only to the extent permitted by law and relevant contracts, the warranties of the manufacturer of the relevant product.
NO IMPLIED WARRANTIES
THE WARRANTIES GIVEN IN THESE TERMS ARE THE ONLY WARRANTIES GIVEN BY THE MANUFACTURER WITH RESPECT TO THE PRODUCTS AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WHICH WARRANTIES ARE HEREBY DISCLAIMED. PURCHASER'S EXCLUSIVE REMEDY, AND MANUFACTURER'S SOLE LIABILITY, FOR ANY NONCONFORMITY OR DEFECT IN ANY PRODUCT SHALL BE ONLY THOSE EXPLICITLY SET FORTH HEREIN. No agent, employee or representative of Manufacturer has any authority to bind Manufacturer to any affirmation, representation or warranty concerning goods sold by Manufacturer and unless an affirmation, representation or warranty is specifically included herein or in Manufacturer's sales acknowledgement, it does not form a part of the basis of any bargain between Manufacturer and Purchaser and shall not be enforceable by Purchaser.
Manufacturer and Purchaser are independent contractors and shall not represent themselves as principal and agent, partners or joint ventures. Any notice under this Agreement shall be in writing, delivered personally or by facsimile to the address as the addressee shall have last furnished in writing to the addressor. Such notice shall be effective upon receipt. The provisions of this Agreement are severable and shall be interpreted so as to be valid and enforceable to the maximum extent possible under applicable law. Any invalid or unenforceable provision shall be reformed or replaced by a valid and enforceable provision that is as similar in meaning as possible, and the remaining provisions shall remain enforceable to the fullest extent permitted by law. The rights granted hereunder are personal to Purchaser, and Purchaser may not assign its rights or delegate its duties, including without limitation, in connection with a merger, consolidation, acquisition, asset sale or similar transaction, without the prior written consent of Manufacturer. The waiver by either party of a breach or a default of any provision of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party.