1. WARRANTY. SELLER warrants that if any product of its manufacture upon examination is found by a
SELLER’S representative to be defective in either workmanship or material under normal use and service
SELLER, at its option, will repair or replace same free of charge including lowest transportation charges but not
cost of installation or removal, or have the purchase price refunded, provided that SELLER receives a written
claim specifying the defect within ninety (90) days from date of distributor sale or one (1) year from date of
factory shipment, whichever occurs first. SELLER further warrants that if a service performed by it for BUYER
in installation or repair of equipment or parts examination of SELLER’S manufacture is found by a
SELLER’S representative to be defective in workmanship under normal use and service, SELLER, at its option, will
repair or replace same free of charge including lowest transportation charges or will refund the purchase price
thereof, provided that SELLER receives written claim specifying the defect within ninety (90) days from date of
service. The performance of a service by SELLER with respect to machinery, apparatus, accessories,
materials, or supplies provided by BUYER or not manufactured by SELLER are specifically excluded from
SELLER’s warranty. All warranties with respect to machinery, apparatus, accessories, materials or supplies not
manufactured by SELLER shall be limited to their respective warranties of the manufacturers thereof, if any,
which SELLER may be permitted to pass on to BUYER. The effects of corrosion, erosion,
modification, misuse, improper installation (if not by SELLER), neglect and normal wear and tear are
specifically excluded from SELLER’S warranty. ALL OTHER WARRANTIES EXPRESSED OR IMPLIED
INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE ARE
HEREBY DISCLAIMED. SUBJECT TO CLAUSE 12(c) BELOW, THE FOREGOING EXPRESSES ALL OF
SELLER’S OBLIGATIONS AND LIABILITIES WITH RESPECT TO THE PRODUCTS AND SERVICES
FURNISHED BY IT HEREUNDER.
The liability of SELLER, on any claim of any kind, whether based on warranty, contract, negligence or
otherwise, for any loss or damage arising out of, connected with, or resulting from this contract, or from the
performance or breach thereof, or from the manufacture, sale, delivery, resale, repair or use of any equipment
covered by or furnished under this contract shall, subject to clause 12(c) below, in no case exceed the purchase
price, and upon expiration of the warranty period all such liability shall terminate. The foregoing shall, subject
to clause 12(c) below, constitute the sole liability of SELLER.
2. ORDER ACCEPTED BY SELLER.
a. All orders received from BUYER are subject to acceptance by SELLER.
b. All sales are limited to and expressly made conditional on BUYER’S assent to these typed and printed
terms and conditions of sale. In the event BUYER accepts any articles or services, such performance by
BUYER shall be deemed to be upon all the terms and conditions herein contained. Any articles or services
SELLER sells or provides will be deemed accepted by BUYER upon delivery, in the case of articles, or
performance, in the case of services. These typed and printed terms and conditions shall apply to the
exclusion of all and any terms or conditions which are implied by trade, custom, practice or course of
c. Terms and conditions on the BUYER’S order form, at variance with terms and conditions stated herein,
are binding upon SELLER only if specifically accepted by a duly authorized representative of SELLER in
d. Orders accepted by SELLER cannot be cancelled by BUYER except with SELLER’S written consent and
upon terms that will indemnify SELLER against loss, including, without limitation, compensation for all
costs of performance incurred by SELLER through cancellation.
e. BUYER may, prior to delivery, make changes in the specifications of the product or the quantity ordered;
provided however, any such change shall be subject to written acceptance by the SELLER. BUYER
agrees to pay any and all additional direct or indirect costs occasioned by such change order, and the
SELLER reserves the right to modify or revoke the limited warranty set forth in clause 1 above if it deems
that said change will affect the performance of the product. SELLER shall advise the BUYER of the new
delivery date necessitated by any such change.
3. SAMPLES. In the event samples are furnished to BUYER, SELLER will not assume any liability in connection
with the furnishing or use thereof and there will be no agreement of warranty collateral to, or affecting, the
furnishing of such samples.
4. TITLE AND RISK OF LOSS; PRICE AND PAYMENT.
a. Prices do not include transportation charges. Transportation charges, if included, are estimates only and
are subject to change. BUYER is responsible for all accessorial freight charges including pre-pay and add
deliveries. In the case of a pre-pay and add delivery with accessorial charges, the accessorial amount
will be back-billed to BUYER. Delivery shall occur when SELLER has tendered the goods to the carrier
at SELLER’s dock . The foregoing shall apply irrespective of any contradictory delivery term (whether an
Incoterm or otherwise) set forth on any BUYER document. Title and risk of loss shall transfer to BUY ER
b. Taxes Not Included in Price: Except where otherwise prohibited by law, all sales, excise, use or similar
taxes or charges by any national, federal, state or local government or relevant authority, which SELLER
may be required to pay or collect, shall be in addition to price stated and shall be paid by BUYER, unless
a valid exemption certificate is furnished therefore.
c. Payment: All accounts are payable within thirty (30) days. SELLER may demand payment or Irrevocable
Letter of Credit (L.O.C.) in advance of shipment if, in SELLER’S opinion, the credit or financial condition
of BUYER is, or is about to become, impaired or SELLER has insufficient credit history with BUYER. A
monthly finance charge of 1.5% (18% annually) shall be imposed on any portion of BUYER’S account not
paid within the terms stated on the SELLER’S invoice from the due date for payment until actual date of
d. Payments Where Shipments are Delayed: In the event of BUYER caused shipment delays including,
without limitation, where BUYER requests delay in shipment or BUYER does not perform inspection
BUYER requires before shipment, SELLER shall have the option of billing for goods when ready for
shipment. If material is not ordered out within sixty (60) days after goods are ready, SELLER will have the
option of billing storage charges.
a. Shipping Dates: Shipping dates are approximate only and are subject to change.
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b. Unforeseen Delays: SELLER shall not be liable in damages or otherwise for delays or failure in
performance when caused by circumstances, of every nature and description and however arising, beyond
SELLER’S reasonable control, including, without limitation, fire, acts of God, strikes, labor difficulties, acts
of governmental or military authority, and/or delays in transportation or in procuring materials.. In the event
that SELLER is unable, due to any such occurrence or otherwise, to fulfill its total commitments to all
customers, BUYER agrees to accept as full and complete performance by SELLER, deliveries in
accordance with such plan or proration as SELLER may adopt.
c. Packaging: SELLER will provide commercial packaging, adequate under normal conditions, to protect
the goods in shipment and identify the contents. Should BUYER request any special packaging, it will be
done at BUYER’S expense.
d. Routing: Buyer shall be responsible for arranging shipment of the goods and all costs related thereto. If
Buyer does not arrange shipment, then SELLER will ship all goods, at BUYER’S expense and risk, via the
most cost effective means of transportation under the circumstances. In the event BUYER requests
expedited shipping and handling, SELLER shall comply provided BUYER pays all reasonable expediting
and increased shipping fees and expenses. If BUYER provides no routing instructions, SELLER shall be
the sole judge of the best method of routing shipment.
e. Claims: Claims for loss or damage in transit are the responsibility of, and must be entered and prosecuted
by the BUYER. SELLER will provide reasonable assistance, at BUYER’S expense, upon request.
6. SPECIAL TOOLING. All special tooling required to produce the goods shall remain the property of the
SELLER unless specific arrangements are otherwise made. In any case, SELLER'S responsibility is limited to
proper design, proper handling in manufacture and storage, and adequate insurance. The BUYER is
responsible for costs resulting from: (1) requested alterations, (2) major repairs or replacement caused by
normal wear, (3) additional costs incurred when new factors are introduced such as shorter lead time and/or
increased rate of delivery. The term "Special Tooling" shall include such items as molds, dies, forms, jigs,
mandrels, fixtures, and other special equipment, except machinery that is required to produce the goods.
7. REJECTIONS AND RETURNS.
a. Notification to SELLER: BUYER will be deemed to have inspected and accepted any shipment under
this contract or performance of services if, within thirty (30) days after BUYER’S receipt of goods or
services, BUYER has not notified SELLER in writing that such goods or services are rejected, including a
detailed description of the grounds therefore.
b. Return of Goods: No goods may be returned by BUYER for any reason without SELLER’S prior written
8. DISCREPANCIES. If BUYER believes there are or may be any errors, omissions or inconsistencies in the
Sales Order Acknowledgement, Invoice, or other documents related or supplemental to its order, BUYER must
submit a claim, with satisfactory evidence in support thereof, within sixty (60) days of the date of sale.
9. COLLECTION COSTS. BUYER agrees to pay reasonable attorney fees and legal costs incurred should it
become necessary to use such methods to collect any amounts past due.
10. INTELLECTUAL PROPERTY. SELLER retains all rights, title, and interests in any intellectual property rights
embodied in or associated with its products and services furnished hereunder. Unless the SELLER and
BUYER mutually agree otherwise in writing, SELLER owns all rights, title, and interest in any custom
developments relating to its products and services, including all rights, title, and interest in all worldwide
copyrights, trade secrets, trademarks, service marks, patents, utility models, industrial designs, proprietary
rights or other intellectual property. BUYER shall not reverse engineer, modify, decompile, analyze the
composition of, create other works from, or disassemble any of SELLER’S products.
11. PATENT INFRINGEMENT.
a. Should the goods furnished by SELLER be of such a nature that the design therefore is supplied by
BUYER, or should the goods be labeled or marked with a trademark or trade name requested by BUYER,
the BUYER agrees to defend SELLER in any action, either civil or criminal, brought against SELLER by
any third party, for the infringement or misuse of any such patents or trademarks, and BUYER further
agrees to hold SELLER harmless from any damage or loss resulting therefrom.
b. As to any of the goods manufactured according to a design or specifications not furnished by BUYER,
SELLER shall indemnify and save harmless BUYER from any claim that any use or resale of the same in
and of itself infringes any patent or patent right if the BUYER within (30) days notifies SELLER in writing
of any such claim and gives SELLER authority, information and assistance (at SELLER'S expense) to
dispose of such claim and to defend any suit that may be brought against the BUYER or BUYER'S
customer thereon. In that event, SELLER will at its expense, defend any such suit and satisfy any judgment
therein to an amount not exceeding the price paid SELLER for said goods held to infringe. If, in any such
suit, an injunction is issued against the further use of said item or any part thereof, SELLER will at its
option and expense either procure for the customer the right to continue using said goods, or replace the
same with non-infringing goods, or modify them so that they become non- infringing, or remove said goods
and refund the purchase price and transportation and installation costs thereof. SELLER shall not be liable
in any respect except as aforesaid, including without limitation, for any claim of infringement settled by
BUYER without SELLER'S consent. The foregoing expresses all of SELLER'S obligations and liabilities
as to patents.
12. GENERAL PROVISIONS.
a. EXPORT CONTROLS. The commodities, materials and related information covered by this invoice may
be subject to the export control laws. The purchaser/distributor shall not knowingly sell, export, transfer or
dispose of, whether directly or indirectly, the commodities, materials, and related information covered by
this invoice to countries, destinations, or end users that are prohibited under law. Further, the
purchaser/distributor shall not commit to any order placed by or for any firm which is disallowed under law.
Any orders originating from, or which will result in delivery to, prohibited individuals or entities located
within or controlled by any country subject to restrictions under export control laws, may not be filled
without the prior authorization and approval of the relevant government.
b. Modifications of Contract: It is agreed that there is no other contract in force between BUYER and
SELLER and no alterations, amendments or modifications to this agreement shall be binding unless
agreed to in writing by SELLER. Should SELLER by any words, acts or writing, waive or be deemed to
have waived any of the provisions of this agreement, or should
Rev. 2 – 10-6-
SELLER fail to insist upon performance by BUYER of one or more of the terms herein, such action or
failure on SELLER’S part will in no way be deemed to imply or otherwise constitute a waiver of any other
terms contained in this agreement.
c. Limitation of Liability: Under no event shall SELLER be liable for any claims for special, indirect,
incidental, collateral, consequential, punitive, or special losses or damages. SELLER shall not be liable
for any risk, damage, or loss occasioned by SELLER’S performance of a service with respect to
machinery, apparatus, accessories, materials, or supplies provided by BUYER or not manufactured by
d. Choice of Law: It is expressly agreed and understood that this agreement shall be governed and
interpreted under the laws of Colorado.
e. Severance: If any court or competent authority finds that any provision of the agreement (or part of any
provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required,
be deemed to be deleted, and the validity and enforceability of the other provisions of the agreement shall
not be affected. If any invalid, unenforceable or illegal provision of the agreement would be valid,
enforceable and legal if some part of it were deleted, the provision shall apply with the minimum
modification necessary to make it legal, valid and enforceable.
f. Third Party Rights: A person who is not a party to this agreement shall have no rights under or in
connection with it.
g. SELLER shall not be liable to BUYER for any delay in, or failure of performance of, any
covenant or promise contained in this contract, nor shall any delay or failure constitute default
or give rise to any liability for damages if such delay or failure is caused by “force majeure.” As
used herein “force majeure” means acts of God; acts of the public enemy; acts of the State and
any governmental entity in its sovereign or contractual capacity; fires; floods; public health
emergencies (including epidemics and pandemics); quarantine restrictions, strikes or other
labor disputes; freight embargoes; or unusually severe weather.
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