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1. ACCEPTANCE
THE SALES TERMS AND CONDITIONS OF SALE CONTAINED HEREIN
APPLY TO ALL QUOTATIONS MADE AND PURCHASE ORDERS ACCEPTED BY NEW
SCALE TECHNOLOGIES FOR THE PURCHASE AND SALE OF PRODUCTS. SOME OF
THE SALES TERMS AND CONDITIONS SET OUT HERE MAY DIFFER FROM THOSE IN
CUSTOMER'S PURCHASE ORDER AND SOME MAY BE NEW. THIS ACCEPTANCE IS
CONDITIONAL ON CUSTOMER'S ASSENT TO THE SALES TERMS SET OUT HERE IN
LIEU OF THOSE IN CUSTOMER'S PURCHASE ORDER. NEW SCALE TECHNOLOGIES
FAILURE TO OBJECT TO PROVISIONS CONTAINED IN ANY COMMUNICATION FROM
CUSTOMER SHALL NOT BE SEEMED A WAIVER OF THE PROVISIONS OF THIS
ACCEPTANCE. ANY CHANGES IN THE SALES TERMS CONTAINED HEREIN MUST
SPECIFICALLY BE AGREED TO IN WRITING BY AN AUTHORIZED OFFICIAL OF
NEW SCALE TECHNOLOGIES BEFORE BECOMING BINDING ON EITHER NEW SCALE
TECHNOLOGIES OR CUSTOMER. All
orders must be approved and accepted by NEW SCALE TECHNOLOGIES.
2. SPECIFICATIONS
Unless different specifications are established and agreed to in
writing, the specifications for the Products are the written
specifications issued by New Scale Technologies for the part number
assigned by New Scale Technologies to the Products. Customer's part
numbers are used for reference only. New Scale Technologies may,
without affecting the obligations of Customer, make insignificant
changes to the specifications of the Products from time to time.
3. PRICES
Prices are shown on the face hereof. If Customer does not purchase the
entire quantity upon which these prices were based, Customer will
pay the higher price specified by New Scale Technologies for the
quantity actually purchased. Prices do not include taxes and any tax
New Scale Technologies may be required to collect or pay upon the
sale, use or delivery of the Products will be paid by Customer upon
invoice.
4. PAYMENT
Unless otherwise set forth on the face hereof payment Sales Terms are
net 30 days from date of invoice with interest on all unpaid amounts
at the rate of 1.5% per month or the highest lawful rate, whichever
is less. New Scale Technologies reserves a purchase money security
interest in the Products delivered until all of New Scale
Technologies' claims have been paid. New Scale Technologies may
change these credit Sales Terms if Customer's financial condition
changes. Each shipment shall be considered a separate and
independent transaction.
5. DELIVERY
Delivery will be f.o.b. New Scale Technologies location and will occur
when the Products are ready for pickup by the carrier. In the
absence of specific instructions, New Scale Technologies will select
a carrier. New Scale Technologies does not assume any liability for
the shipment. Customer will be responsible for all transportation
and insurance charges, including those associated with warranty
repairs. Delivery dates set forth on the face hereof are estimates
only. New Scale Technologies will use its best efforts to deliver in
accordance with these dates but will not be responsible for failure
to deliver as estimated.
6. EXPORT CONTROLS
New Scale Technologies products and services, including user manuals
and software, are subject to all U.S. export control laws,
regulations and administrative policies. Diversion contrary to U.S.
law is prohibited. Purchaser understands that a license, written
approval or other authorization may be required from the Bureau of
Industry and Security of the U.S. Department of Commerce, the
Directorate of Defense Trade Controls of the U.S. Department of
State or other U.S. government agency prior to the export or
reexport of these items from the U.S. Guidance may be found at
http://www.bis.doc.gov/ and
http://www.pmddtc.state.gov/
. Purchaser further understands that it is unlawful to export,
reexport or transfer, or to attempt to export, reexport or transfer
these items to individuals or entities on the List of Debarred
Parties, Denied Persons list, Specially Designated Nationals List,
Entity List, Unverified List or Nonproliferation Sanctions list, as
well as sales or transfers to Embargoed Countries. It is the
purchaser's responsibility to be aware of these Lists. These Lists
may be accessed at:
http://www.bis.doc.gov/ComplianceAndEnforcement/ListsToCheck.htm.
7. INSPECTION
Within 30 days after delivery Customer will inspect the Products and
give written notice of rejection to New Scale Technologies detailing
the manner in which any Products do not conform to the
specifications. Upon receiving authorization and shipping
instructions from New Scale Technologies, Customer may return
rejected Products. If Customer retains the Products after their
delivery without giving New Scale Technologies such notice within
the designated period, Customer will be deemed to have irrevocably
accepted the Products. Customer's inspection and acceptance tests
shall not exceed the inspection and test procedures customary in the
industry for the Products and shall be at Customer's expense. New
Scale Technologies may charge to Customer any costs resulting from
the testing, handling, and disposition of any Products returned by
Customer which are not found by New Scale Technologies to be
non-conforming.
8. WARRANTY
New Scale Technologies warrants to Customer that the Products will be
free from defects in material and workmanship under normal use and
service for a period of one year from the date of invoice.
Customer's exclusive remedy for breach of this warranty is that New
Scale Technologies will either (i) repair or replace, at its option,
any Product which fails during the warranty period because of such
defect (if Customer promptly reported the failure to New Scale
Technologies in writing) or, (ii) if New Scale Technologies is
unable to repair or replace, New Scale Technologies will refund the
purchase price of the Product upon its return to New Scale
Technologies. This warranty does not apply to any Product which has
been subjected to misuse, abnormal service or handling, or which has
been altered or modified in design or construction, or which has
been serviced or repaired by anyone other than New Scale
Technologies. The warranties set forth herein are in lieu of, and
exclusive of, all other warranties, express or implied. ALL EXPRESS
AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR USE AND
FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY EXCLUDED.
9. PATENTS AND COPYRIGHTS
If notified promptly in writing of any action (and all prior related
claims) brought against Customer alleging that Customer's use of the
Products infringes a United States patent or copyright, New Scale
Technologies will defend that action at its expense and will pay the
costs and damages awarded against Customer in the action, provided
that New Scale Technologies shall have sole control of the defense
and all negotiations for settlement or compromise. If a final
injunction is obtained in such action against Customer's use of the
Products or if in New Scale Technologies opinion the Products are
likely to become the subject of a claim of infringement, New Scale
Technologies will at its option and expense either procure for
Customer the right to continue using the Products, replace or modify
the Products so that they become non-infringing or grant Customer a
credit for the infringing Products and accept their return. New
Scale Technologies will not have any liability to Customer if the
alleged infringement is based upon use or sale of the Products in
combination with other products or devices which are not made by New
Scale Technologies or use of the Products for other than their
intended purpose. Customer will defend and hold New Scale
Technologies harmless against any expense, judgment or loss for
alleged infringement of any patents, copyrights or trademarks which
result from compliance with Customer's designs, specifications or
instructions. No costs or expenses shall be incurred for the account
of New Scale Technologies without its prior written consent. New
Scale Technologies total liability to Customer as a result of
compliance with this provision will not exceed the sum paid to New
Scale Technologies by Customer for the allegedly infringing
Products. The foregoing states the entire liability of New Scale
Technologies for alleged infringement of patents and copyrights by
the Products, any part of them or by their operation.
10. CANCELLATION AND RESCHEDULING
Customer may by written notice to New Scale Technologies cancel or
reschedule any shipment of Products that is scheduled for delivery
at least 90 days (unless a different time period is specified on the
face hereof) from the time New Scale Technologies receives
Customer's notice. All quantities must be released and shipments
scheduled no more than 12 months from the date hereof. New Scale
Technologies may cancel this order or any portion in the event of
Customer's default or a material adverse change in Customer's
financial condition without affecting New Scale Technologies’ right
and remedies. Except as otherwise provided herein orders accepted by
New Scale Technologies are firm and non-cancellable.
11. CONTINGENCIES
New Scale Technologies shall not be responsible for any failure to
perform due to unforeseen circumstances or to causes beyond New
Scale Technologies’ reasonable control. Examples of such causes are
acts of God, war, riot, embargoes, acts of civil or military
authorities, fire, floods, accidents, strikes or shortages of
transportation facilities, fuel, energy, labor or materials. New
Scale Technologies may defer delivery for a period equal to the
delay caused by such contingency in the event of shortages for any
reason whatsoever. New Scale Technologies may allocate production
among its customers.
12. LIMITATION OF LIABILITY
Liability of New Scale Technologies to Customer, if any, under this
contract for breach of contract or warranty, negligence or otherwise
shall in no event exceed the total contract price specified herein
less the purchase price of any items delivered and accepted
hereunder. In no event shall New Scale Technologies be liable to
Customer or others for special, incidental or consequential damages
for breach of any of the provisions of this contract, including
without limitation, provisions regarding warranties, guaranties,
indemnities, and patent infringement, or based upon any claims,
demands, settlements, or lawsuits arising from or in connection
with, the Products sold hereunder, such damages including, but not
limited to, costs of removal and reinstallation of items, loss of
good will, loss of profits, or loss of use. Customer assumes all
liability for any and all damages arising from or in connection
with, the use or misuse of the Products by Customer, its employees,
or others.
13. GENERAL
This is the complete and exclusive statement of the agreement between
the parties and supersedes all prior agreements and communications
about the subject matter. Neither this agreement nor individual
transactions under it may be assigned by Customer without the prior
written consent of New Scale Technologies. Regardless of any disclosure made by
Customer to New Scale Technologies of an ultimate destination of the
Products, Customer will not export, directly or indirectly, any
Product without first obtaining all required licenses from the
appropriate government agencies. This agreement and all transactions
under it shall be governed by the laws of New York.
Date 4.4.2011 |
