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1. Agreement.
Subject to the terms and conditions set forth herein, Regal Sleeving
and Tubing, LLC, a New Hampshire limited liability company with
its principal place of business located at 55 Main Street Newmarket,
New Hampshire ("Seller") agrees to sell, and Purchaser
agrees to purchase, goods, products and services, including any
documentation with respect thereto, (collectively referred to as
the "Products")
as are identified on Seller's sales quotation ("Quotation")
or sales acknowledgement ("Acknowledgement").
2. Binding
Terms.
2.1. The terms and conditions set forth in this agreement ("Agreement")
shall become binding on the parties upon the earlier of (i) Seller's
issuance of its Acknowledgement or (ii) Seller's delivery of
the Products, in whole or in part.
2.2. The terms of the sale of the
Products are expressly limited to the terms and conditions set forth
herein unless modified by the terms and conditions of the Quotation
or Acknowledgement. Any and all terms set forth on Purchaser's purchase
order or otherwise proposed by Purchaser are hereby rejected and
shall be void unless expressly agreed to in writing signed by Seller.
This Agreement contains the entire agreement of the parties and all
proposals, negotiations, representations or agreements made or entered
into prior to or contemporaneously herewith, whether oral or in writing,
are expressly superseded by this Agreement.
3. Delivery; Title & Risk
of Loss.
3.1. Delivery
shall be made and title and risk of loss shall pass to Purchaser
upon Seller placing the Products with a carrier FOB point of shipment
regardless of whether Seller or Purchaser pays the cost of shipping.
Delivery dates are approximate and are based upon prompt receipt
of all necessary information from Purchaser. Receipt of the Products
by Purchaser FOB point of shipment shall constitute Purchaser's
acceptance for delivery and waiver of any and all claims against
Seller for loss or damage incurred due to delay. Upon such delivery
no damage, destruction or loss of the Products shall release Purchaser
from its obligations and liabilities to Seller hereunder. No claims
for errors in shipment will be considered unless made within ten
(10) days after Purchaser's receipt of Products and unless accompanied
by necessary papers or documents to substantiate the claim.
4. Limitation
on Liability.
4.1. Seller shall not be liable or responsible for any indirect,
proximate, special or consequential damages or contingent liabilities
(collectively, "Special Damages") under any circumstances,
including, but not limited to, loss of life, personal injury,
loss of business income, downtime costs or trade or other commercial
losses arising out of a defect in any of the Products, including,
but not limited to, damage or loss resulting from Purchaser's
inability to use the Products or Purchaser's (or its customer's)
inability to use any equipment, or any increased operating costs
or loss of production or costs incurred by Purchaser (or any
customer of Purchaser) in removing, reinstating or repairing
allegedly defective Products or delay damages or any other such
damages, whether arising from causes similar to or dissimilar
to those enumerated.
4.2.
Notwithstanding any provision hereof which may be or appear to
be to the contrary, in no event whatsoever shall Seller's liability
in respect to any claim or action of any kind arising out of, in
connection with, or resulting from the manufacture, sale, delivery,
resale or use of the Products, or any breach by Seller of any term
hereof, exceed the price received by Seller for the Products which
gives rise to such claim or action. Purchaser assumes all other
liability for any loss, damage or injury to persons or property
arising out of, connected with or resulting from the use of the
Products, either alone or in combination with other Products, including,
without limitation, any Special Damages or any loss, damage or
injury to Purchaser (or to Purchaser's employees or property or
to the employees or property of any customer of Purchaser) due
to the acts or omissions of Purchaser, its agents, employees or
customers, in the installation, use or operation of such Products.
5.
Limited Warranty.
5.1. As its sole and exclusive warranty
with respect to the Products, Seller warrants that, for the period
ending on the earlier to occur of (i) fifteen (15) days after the
date of discovery and (ii) sixty (60) days after the date of shipment,
the Products sold hereunder that are manufactured by Seller are
free from defects in material and workmanship under normal operating
conditions and proper application.
5.2. THE FOREGOING WARRANTY IS EXPRESSLY IN
LIEU OF ANY OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, NOTWITHSTANDING ANY DISCLOSURE TO SELLER
OF THE INTENDED USE OF THE PRODUCTS, AND ALL SUCH OTHER WARRANTIES,
EXPRESS AND IMPLIED ARE HEREBY EXPRESSLY DISCLAIMED.
5.3. The foregoing
warranty does not cover any conditions over which Seller has no
control, including, without limitation, abuse, neglect, accident,
improper installation or application, misapplied use, failure to
maintain, failure to use appropriate materials or supplies in connection
with the Products, unsuitability or incompatibility of the Products
with other products not supplied by Seller or any Products altered
by anyone other than Seller's personnel.
5.4. Purchaser's sole and exclusive
remedy under this limited warranty shall be limited to, at the
option of Seller, (i) the exchange of warranted Products (FOB Seller's
factory) (ii) refund of the invoice value of such defective warranted
Products or (iii) a credit to Purchaser’s account equal to
the invoice value of such defective warranted Products.
5.5. No Products shall
be returned without prior authorization from Seller. Purchaser
shall prepay all transportation charges for the return of such
Products to Seller's factory. Seller shall be responsible for reasonable
transportation charges back to Purchaser for Products that have
been replaced by Seller. All replacements provided under this warranty
will assume the identity for warranty purposes, of the Products
replaced and the warranty on such Products will expire when the
warranty on the original part would have expired. Claims must be
submitted within the earlier to occur of (i) fifteen (15) days
after the date of discovery and (ii) sixty (60) days after the
date of shipment or be subject to rejection. This warranty is not
transferable beyond the first purchaser.
5.6. If the Purchaser grants to an end user any warranty
that is greater in scope or time period than the warranty stated
herein, Seller shall not be liable beyond this stated warranty.
The term "Purchaser" as
used herein means the person or firm that purchased the Products
directly from Seller, and includes direct OEM customers and Seller's
distributors.
6. Prices.
6.1. All prices are subject to change without notice and
the prices hereunder shall be those in effect at the time of shipment.
Prices exclude shipping and insurance costs, unless Seller otherwise
agrees in writing, in which case delivered prices are subject to
change in shipping charges. Prices are stated in United States
Dollars and payment shall be made in United States currency.
6.2. Prices
do not include sales, use, excise or any similar taxes or other governmental
charges. Any tax or other governmental charge upon the production,
sale, shipment, or use of the Products which Seller is required to
pay or collect from Purchaser shall be paid by Purchaser to Seller
unless Purchaser furnishes Seller with a tax exemption certificate
acceptable to the applicable taxing authority. Purchaser shall be
responsible for obtaining any and all necessary governmental clearances,
including any import, export and/or foreign exchange license, which
may be required by the federal, any state or any foreign government,
or any subdivision or agency of any thereof. Any and all fees that
are imposed by foreign, federal, state, municipal or other authorities
incurred by Seller on behalf of Purchaser during the production,
sale or shipment of Products shall be added to the price and must
be paid by Purchaser.
7. Payment.
7.1. All amounts payable by Purchaser with respect
to the Products are, unless otherwise indicated, due and payable
30 days from the date of invoice. Thereafter, the unpaid balance
thereof shall bear interest at the rate of one and one-half percent
(1.5%) per month until paid in full.
7.2. Invoices shall be dated as of the
date of shipment. However, if, in the opinion of Seller, the financial
responsibility of Purchaser becomes impaired or unsatisfactory prior
to payment in full with respect to the amounts due hereunder, Purchaser
shall, if required by Seller to do so, make cash payments or furnish
satisfactory security before any further deliveries are made hereunder.
Failure or refusal by Purchaser to comply with the requirements that
Seller may impose upon Purchaser in accordance with the foregoing
shall entitle Seller to suspend deliveries hereunder during such
failure or refusal or, alternatively, to terminate this Agreement.
Any such action by Seller shall not in any way prejudice Seller's
claim for damages or Purchaser's obligations to pay for Products
already delivered.
7.3. Seller shall be entitled to reimbursement on demand
for expenses for collection on all unpaid amounts owing by Purchases,
including attorneys’ fees.
8. Uniform Commercial Code. Until all
amounts owing Seller for the Products (in accordance with this Agreement
and as set forth in invoices or by other memoranda from time to time
issued to Purchaser by Seller) have been fully paid (all such obligations,
liabilities and indebtedness of Purchaser to Seller being sometimes
collectively referred to herein as "Liabilities"), Purchaser
hereby grants to Seller, to secure payment of such Liabilities, a continuing
senior purchase money security interest in the Products and proceeds
therefrom. Purchaser shall, at its own cost and expense, perform
all acts necessary to perfect and protect Seller's interest;
provided, Purchaser hereby authorizes Seller to file UCC financing
statements to perfect such security interest.
9. Transportation Charges and
Allowances.
9.1. Unless otherwise agreed to by Seller in writing, all shipping
arrangements with respect to the Products shall be made by Purchaser
and the costs thereof borne by Purchaser.
9.2. If Seller includes
the cost of shipping in the purchase price of the Products, then
(i) Seller reserves the right to select (a) the method of shipment,
(b) the delivery routing and (c) the carrier; (ii) any additional
transportation costs incurred due to routing, method of shipment
or other instructions requested by Purchaser will be added to the
purchase price and paid by the Purchaser; (iii) any prepayment by
Seller of shipping charges shall be for the account of Purchaser
and shall be paid by Purchaser with the total purchase price for
the Products; (iv) if requested by Purchaser, stop-overs are permissible
when tariffs allow, provided that Purchaser shall pay any and all
stop-over charges, including, without limitation, any shipping charges
due to additional mileage incurred; and (v) if part shipment is made
with Purchaser's approval, additional shipping charges arising therefrom,
if any, will be billed to the Purchaser.
10. Force Majeure. Seller shall
not be liable for any delay or failure in delivery or performance
or damage to Products, due, directly or indirectly, to any cause
beyond Seller's reasonable control, including, but not limited
to, acts of God, fires, floods, epidemics, strikes or other labor
disputes, accidents to machinery, acts of sabotage or terrorism,
riots, wars, inability to obtain raw materials, components, fuel
or supplies, precedence or priorities granted at the request or for
the benefit, directly or indirectly, of the federal, any state or
foreign government or any subdivision or agency thereof, delay in
transportation or lack of transportation facilities, or any restrictions
imposed by federal, state, foreign or other governmental legislation,
rules, regulations or orders. In the event of any such delay or failure,
this Agreement shall not terminate, but the date of delivery or
performance shall be extended for a period equal to the time lost
by reason of the delay or failure.
11. Cancellation. This Agreement may not be
cancelled by Purchaser without the prior written consent of Seller,
which consent may be granted or withheld in Seller's sole discretion.
In the event of such cancellation, Purchaser shall be liable for
Seller's anticipated profit and for all costs incurred prior to
cancellation.
12.
Compliance with Law. Seller represents that Products delivered
or performed by Seller pursuant hereto will comply with the Fair
Labor Standards Act of 1938, as amended.
13. Federal Contract Requirements.
In the event this Agreement is subject to the following requirements
related to federal contracts, Seller represents that its performance
hereunder is in compliance with: (i) Executive Order 11246, including
section 202; (ii) The Vietnam Era Veterans Readjustment Assistance
Act of 1974; (iii) applicable worker's compensation requirements;
and (iv) The Rehabilitation Act of 1973.
14. Indemnification; Intellectual
Property.
14.1. Purchaser agrees to hold Seller harmless from any
and all damages, costs and expenses relating to any claim arising
from the design, manufacture or use of any Products made in accordance
with drawings, samples or manufacturing specifications designated
by Purchaser or arising from the combination or incorporation
of any Products in a more comprehensive assembly than sold by Seller,
or arising from a claim that such Products furnished to Purchaser
by Seller, or the combination or incorporation or the use of
any thereof, infringes upon any intellectual property rights, including,
without limitation, Letters Patent or trade secrets, foreign
or domestic, and Purchaser agrees at its own expense to undertake
the defense of any suit against Seller brought upon such claim
or claims.
14.2. In the event any Products manufactured by Seller
are solely the design of Seller, Seller agrees (subject to the last
sentence of this Section) to hold harmless Purchaser against damage
awarded by a court of final jurisdiction in any suit or suits for
the infringement of any intellectual property rights or the violation
of any trade secrets by reason of the sale or use of such Products.
Notwithstanding the foregoing, any obligation on Seller's part to
indemnify Purchaser under this Section 14.2 shall be limited solely
in amount as provided for in Section 4.2 above.
14.3. Purchaser agrees
to notify Seller in writing as soon as practicable of any charge
or suit alleging any such infringement or violation, and agrees
that the foregoing agreement to indemnify by Seller shall not apply
unless Seller shall have been so notified and given the opportunity
to take over the defense thereof, and further, such agreement to
indemnify shall not apply if (i) the claimed infringement is settled
without the consent of Seller unless required by a final unappealable
decree of a court of competent jurisdiction, or (ii) the infringement
or violation results from the use of any such Products in combination
with a product not manufactured by Seller where such infringement
or violation would not have occurred from the use of the Products
alone.
14.4. Seller grants no license hereunder, express or implied,
other than the right of Purchaser to use the Products.
15. Return
Authorization. Except as set forth in Section 5.5 or in this Section,
Purchaser may not return any shipped Products. Purchaser may, with
the prior written consent of Seller (which consent may be granted
or denied in Seller's sole and absolute discretion) and in conformity
with shipping instructions provided by Seller, return Products delivered
to Purchaser and with respect to which Purchaser has not paid to
Seller the full purchase price thereof, that are free from any damage
whatsoever and in fair saleable condition; provided, however, that
(i) with respect to any of Seller's standard products, Purchaser
agrees to pay to Seller a restocking charge equal to twenty-five
percent (25%) of the purchase price of such Products together with
any transportation, taxes and/or rework charges incurred by Seller
in connection with the return of such Products and (ii) with respect
to any of Seller's non-standard Products, such fees, charges and
expenses as Seller shall determine in its discretion.
16. Proprietary
Rights.
16.1. All information of
every kind and nature (except for such information as may be established
to be in the public domain or which, subject to Section 16.2 below,
Purchaser establishes to be the property of Purchaser) related
to the design, engineering, production, process, method, device,
technique, formulas, plans, diagrams, drawings, compilations, patterns,
tools, dies, or fixtures in connection with or related to any Product,
are proprietary in favor of Seller. Such information has been developed
at great expense to Seller and may contain trade secrets of Seller.
Purchaser shall not reproduce, disclose, distribute or utilize
same without Seller's prior express written consent (which consent
may be granted or denied in Seller's sole discretion) or as required
by judicial or governmental action and Purchaser shall exercise
reasonable care to hold such information in confidence.
16.2. Any information,
suggestions or ideas transmitted by Purchaser to Seller in connection
with performance hereunder are not to be regarded as proprietary
or confidential unless expressly provided in a writing signed
by Seller.
16.3.
Seller shall take reasonable precautions to safeguard any Purchaser
property entrusted to Seller’s custody or control,
but in the absence of gross negligence or willful disregard by
Seller for Purchaser’s property rights, Seller shall not
be responsible for any loss, damage, destruction, or unauthorized
use by others of such property.
17. Default.
17.1. The occurrence of any of the following
events shall constitute Purchaser's default under this Agreement:
(i) Purchaser's failure to make timely payment of any sum owing
to Seller under this Agreement; (ii) institution of any proceedings
by or against Purchaser under any bankruptcy, insolvency or similar
law; (iii) appointment or application for a receiver for Purchaser;
(iv) an assignment by Purchaser for the benefit of creditors; (v)
failure of Purchaser to furnish Seller, upon Seller's request,
with a written representation reaffirming Purchaser's solvency
(it being understood that this Agreement constitutes a representation
by Purchaser that it is solvent); or (vi) Seller deems itself insecure
with respect to performance by Purchaser hereunder.
17.2. Upon Purchaser's
default hereunder, Seller may, upon written notice to Purchaser,
cancel Seller's obligations under this Agreement, in which case,
at Seller's option: (i) Purchaser shall pay for all Products delivered
and for all Products completed or in process pursuant to this Agreement;
(ii) With respect to any unit of Products for which Seller has
not received full payment, Seller may stop delivery, retake (or
retain) possession of such units of Products wherever located (all
without notice, demand or legal process) and retain, lease or resell
(at public or private auction or otherwise) such units of Products
without accounting to Purchaser and any payments received by Seller
from Purchaser of less than full payment for any such units of
Products may be retained as liquidated damages; (iii) Seller may
declare any outstanding balance immediately due and owing and collect
same from Purchaser without further notice or demand, together
with interest at the maximum rate permitted by law; and/or (iv)
Refuse to deliver any Products except on a cash basis.
17.3. In
the event of a default by Purchaser as described in Section 17.1
above, and at any time or times thereafter, Seller may declare
all Liabilities secured hereby to be immediately due and payable
and shall have and may exercise all the remedies of a secured party
under the Uniform Commercial Code and other applicable state and
federal law as in effect from time to time. The commencement of
any action, at law or in equity, or the rendering of any judgment
or decree for any deficiency, shall not affect Seller's security
interest in the Products or proceeds thereof, until the Liabilities
hereunder or any judgment therefor are fully paid and satisfied.
18.
Miscellaneous.
18.1. Seller shall be an independent contractor
of Purchaser in the performance of this Agreement. Neither party
hereto, nor any respective agent of either party, shall be regarded
as an agent or employee of the other. This Agreement shall not
be construed to be a joint venture between the parties.
18.2. No waiver by Seller
of any default shall be deemed a waiver of any subsequent default
unless the same shall be signed in writing by Seller.
18.3. If any provision of this Agreement is held to be
invalid under applicable law, such invalidity shall not affect
the remaining provisions of this Agreement.
18.4. The provisions
of this Agreement shall be binding upon and inure to the benefit
of the respective representatives, successors and assigns of
the parties hereto, including, without limitation, a debtor-in-possession;
provided, however, that no interest herein may be assigned by
Purchaser without the prior written consent of Seller.
18.5. No waiver, alteration or modification of the terms
and conditions hereof shall be valid or binding upon Seller unless
made in writing and signed by Seller.
18.6. This Agreement shall be governed by
the laws of the State of New Hampshire. Any claim or dispute
arising from or under this Agreement or any order for Products
shall be maintained only in a state or federal court located
in the State of New Hampshire and both Seller and Purchaser hereby
consent to the jurisdiction of such courts for all purposes;
provided, however, either party may pursue equitable relief in
any court having jurisdiction. |
