1. GENERAL TERMS AND CONDITIONS OF SALES.
All products and services by CML USA, Inc. (“Seller”) are furnished to the buyer (“Buyer”) only on the terms and conditions stated in this document (“Terms”) and in the Seller quote (“Quote”) to the exclusion of any terms and conditions submitted by Buyer orally or in writing. Seller’s performance of any contract is expressly conditioned on Buyer’s agreement to these Terms. These Terms may not be altered, supplemented, or amended by the use of any other document(s), and Seller has not authorized any employee or agent to offer any terms, conditions, or any other rights whatsoever except as provided herein. Any additional or different terms and conditions contained in any oral communication, purchase order, or other document of Buyer will be null and void, unless they are in writing and duly executed by an authorized representative of Seller.
2. GENERAL INTERPRETATION.
This contract is made in the State of Iowa and shall be interpreted under the Uniform Commercial Code (as adopted by the State of Iowa, “UCC”) and any other laws of the State of Iowa, without giving effect to the principles of conflicts of laws. This contract shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods (1980). Any dispute may be resolved in the State of Iowa and the Buyer voluntarily submits to such non-exclusive jurisdiction.
3. CONSIGNED GOODS.
Buyer acknowledges that certain Goods provided by Seller may be supplied on a consignment basis. In the event any Goods are designated as consigned Goods, the Buyer agrees to execute and deliver to Seller all documents necessary to create a consignor-consignee relationship as well as to protect Seller’s interest in such consigned Goods, including, but not limited to, the filing of any UCC financing statement related thereto, and Buyer expressly agrees that Seller shall retain title to all such consigned Goods until such time as Buyer sells such Goods to its customers, at which time title shall pass from Seller directly to the customer. Buyer shall keep a current and accurate inventory and record of all consigned Goods and shall permit Seller’s representative(s) to inspect said records and Goods at any reasonable time upon written request.
4. CHANGES.
Constructive or express changes may be made to an order but any such changes shall be agreed to, in writing and signed by both parties. The Seller reserves the right to stop work until agreement is reached on cost and schedule impact of the changes requested by the Buyer and the Buyer accepts there may be some impact on delivery schedule as a consequence of such constructive changes. Buyer assumes all risk of delay and effect on delivery schedule due to changes to an order.
5. CANCELLATION.
If the Buyer cancels their purchase order or any portion thereof, a thirty (30) day written notice must be provided by Buyer to Seller prior to the intended date of cancellation. The Buyer agrees to reimburse and pay the Seller for the full price of all finished, custom, or tailored Goods, all inventory obligated to, or received to fill the order, and any work-in-process as of the date of cancellation, including costs of import, shipping, and freight of goods already ordered by Seller from its manufacturer, and including all costs incurred by the Seller to stop work and cancel subcontracts or purchase orders in force and outstanding. The Seller agrees to use reasonable efforts to attempt to obtain reasonably favorable terms for remaining goods under the given circumstances for Seller’s order or contract cancellations resulting from Buyer’s cancellation. However, Seller retains the right to re-sell goods on a liquidation basis if after reasonable efforts they cannot be re-sold and seek reimbursement from Buyer for the difference.
6. SELLER’S RIGHTS TO SUB-CONTRACT.
Seller may subcontract any portion of the work on any item subject to this agreement, but Seller’s obligations and rights hereunder shall not thereby be limited or affected.
7. COMPLIANCE WITH U.S. EXPORT AND RE-EXPORT CONTROL REGULATIONS.
It is the policy of the Seller to comply with U.S. export control laws. Furthermore:
(a) Buyer shall not sell or otherwise transfer any Goods or technology to, or for the use of, any ultimate purchaser with which Seller could not do business under the laws or regulations of the United States, including, without limitation, the regulations of the U.S. Departments of Commerce, Defense, Energy, State, and Treasury. Buyer shall also comply with all other laws and regulations of the United States relating to the sale or transfer of Seller’s Goods or technology.
(b) Buyer agrees that it will not sell, divert, transfer, or disclose Seller’s Goods or technology to a country or countries embargoed by the United States or any prohibited entities unless authorized by the United States Government.
(c) The applicable U.S. restrictions vary depending on the specific product or technology involved and its destination. In some cases, U.S. laws and regulations require U.S. authorization for the sale, transfer, or disclosure of Seller’s Goods or technology to other parties. Prior written U.S. authorization may be required for the disclosure through oral, visual, written, or other means to other parties of Seller’s technology related to the design, development, manufacture, operation, maintenance, or repair of Seller’s Goods.
(d) Willful violation of such regulations shall be considered just cause for the immediate and unqualified cancellation of this agreement by Seller without any liability of Seller.
(e) Buyer agrees to immediately transmit any information that may come to its attention concerning violations of such regulations by Buyer’s customers.
(f) When Buyer is uncertain about the obligation imposed by U.S. laws or regulations, Buyer agrees to obtain clarification from the Seller or from the appropriate U.S. Government agency.
8. ACCEPTANCE OF ORDER.
(a) The acceptance of the Buyer’s order by Seller is expressly contingent upon Buyer’s written express acceptance of the Terms stated herein, unless otherwise specifically agreed in writing signed by the Seller. Any terms or conditions stated by the Buyer in any prior correspondence, written, verbal, or implied, are hereby objected to and not accepted by the Seller. Buyer’s acceptance of, or Seller’s provision of, Goods or services covered by this order shall not constitute acceptance by Seller of Buyer’s terms and conditions. Seller is under no obligation to provide or ship the Goods until Buyer’s written acceptance of these Terms.
(b) Buyer shall be deemed to have accepted any Goods and Buyer’s right to cancel, reject, rescind the order, and Seller’s obligations under this contract shall cease, unless Buyer gives Seller notice in writing including each and every claimed defect, nonconformity, and other issue Buyer takes with Goods:
(i) in case of defects discoverable through inspection, fourteen (14) days after arrival of the shipment; or
(ii) in the case that defects are not discoverable through inspection, thirty (30) days after arrival of the shipment.
(c) In the case of non-conforming Goods, if Buyer wishes to accept said Goods, Buyer shall immediately notify Seller that the Buyer will continue to accept similarly non-conforming Goods, and acceptance of such non-conforming Goods shall constitute a waiver by Buyer of specification requirements for said Goods.
(d) If Buyer alters the Goods in any way from its original state, Buyer shall be deemed to have accepted the Goods. Buyer’s acceptance of the Goods under this contract shall be deemed final and irrevocable.
(e) The Buyer shall have the right to inspect the Goods upon delivery. Failure of the Buyer to inspect the Goods and give written notice to the Seller of any and all alleged defects or non-conformity within fourteen (14) days after delivery shall constitute an irrevocable acceptance by Buyer of the Goods delivered to him. Use of any such Goods by Buyer, its agents, employees, or licensees, for any purpose after delivery thereof, shall constitute acceptance of the Goods by Buyer. Buyer shall accept the tender of the Goods by Seller which substantially conforms to the description of the Goods set forth herein and in any purchase order and/or quotes.
9. INTELLECTUAL PROPERTY RIGHTS.
All drawings, designs, specifications, performance criteria, test results, product data sheets, software, diagnostic software, manuals, and other documentation and information delivered by Seller in connection with the Goods sold hereunder shall remain the property of Seller. Copyright and other intellectual property rights in all such materials shall remain with Seller at all times. Except for such materials and information as may be found in the public domain, Buyer shall hold all other information and materials provided by Seller (“Confidential Information”) in the strictest confidence and protect it from disclosure to or use by third parties through measures, and exercising a degree of care, that are at least as protective as those Buyer exercises in safeguarding the confidentiality of its own proprietary information and that constitute not less than a reasonable degree of care under the circumstances. Confidential Information may only be disclosed to Buyer’s employees and agents who require access in the performance of their duties for Buyer and who are subject to written confidentiality obligations to Buyer that are not less restrictive than those set forth herein. Other than as provided in the preceding sentence, Buyer shall not disclose Confidential Information to any third parties without the prior written authorization of Seller. Buyer recognizes and agrees that there is no adequate remedy at law for a breach of this Section 13, that such a breach would irreparably harm Seller, and that Seller is entitled to equitable relief (including, without limitation, injunctive relief) with respect to any such breach or potential breach in addition to any other remedies.
10. SHIPMENT.
Buyer’s purchase orders shall state the estimated delivery schedule. Delivery shall not be guaranteed by or on any date, unless mutually agreed upon in writing. Seller will schedule deliveries according to the purchase orders and all delivery dates are approximate and subject to reasonable efforts. Buyer acknowledges delays in shipping may occur due to forces outside of the control of Buyer. Acceptance of the order by the Buyer constitutes a waiver of all claims due to delay in delivery.
Seller will use reasonable efforts to effect shipment on the estimated schedule. Seller shall not be liable, directly or indirectly, for any delay or failure in performance or delivery or inability to perform or deliver where such delay, failure, or inability arises or results from any cause beyond Seller’s control or beyond the control of Seller’s suppliers or contractors, including, but not limited to, strike, boycott, or other labor disputes, embargos, government regulations, and inability or delay in obtaining materials. Seller shall not be liable to Buyer or any third parties for any consequential, special, or contingent damages.
In the event of any such delay or failure in performance, Seller shall have such additional time within which to perform its obligations hereunder as may be reasonably necessary under the circumstances. If Seller is unable to perform this contract, in whole or in part, then to the extent that it is unable to perform, the contract shall be deemed terminated without liability to either party, but shall remain in effect as to the unaffected portions of the contract, if any.
11. FORCE MAJEURE.
The Seller shall not be liable for any default or failure to delivery under the purchase order due to acts of God, fire, flood, or other natural calamities, strikes, riots, civil commotion, freight embargoes, to any act of the United States Government or to any other causes whatsoever that are beyond the immediate and direct control of the Seller.
12. TRANSPORTATION AND RISK OF LOSS.
(a) Seller may make delivery in installments and may render a separate invoice for each installment, which invoice shall be paid when due, without regard to subsequent deliveries. Each installment shall be deemed to be a separate sale. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept delivery or the remaining installments.
(b) Unless otherwise agreed to in writing by Seller, all transportation and freight cost shall be the expense of Buyer and the risk of loss shall be on Buyer. Seller reserves the right to ship Goods freight collect and to select the means of transportation and routing. Seller shall have no duty to carry insurance on any shipment of Goods purchased by Buyer unless specified in writing between the parties, and Buyer’s title and risk of loss shall attach to the Goods as soon as they are delivered by Seller to the transportation company.
(c) If a strike, embargo, governmental action, or any other cause beyond Seller’s control prevents shipment or delivery to Buyer, or its agent, title and risk of loss shall pass to Buyer as soon as the shipment has been invoiced and payment shall be made in accordance with the invoice.
(d) Confiscation or destruction of, or damage to Goods shall not release, reduce, or in any way affect the liability of Buyer thereto. Notwithstanding any defect of non-conformity, or any other matter, such risk of loss shall remain in Buyer until the Goods are returned at Buyer’s expense to such place as Seller may designate in writing. Buyer, at its expense, shall fully insure Goods against all loss or damage until Seller has been paid in full therefore, or the Goods have been returned, pursuant to Seller’s consent and the provisions of paragraph 18 below, to the Seller.
13. WARRANTY AND WAIVER OF WARRANTIES.
THE WARRANTIES ATTACHED TO THIS QUOTATION ARE SELLER’S CURRENT EXCLUSIVE WARRANTIES AND SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES (WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY), INCLUDING (BUT NOT LIMITED TO) ANY WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Seller hereby disclaims any warranty regarding speed of production or output or economics of operation with respect to the Goods. If such matters are set forth or described in the specifications and advertising applicable to the Goods such statement or description shall be deemed to be an estimate only.
Any warranties of Seller with respect to the Goods shall be null, void and without effect if such Goods have been modified, altered or repaired by persons or entities other than Seller, unless otherwise agreed to (in writing) by Seller. Notwithstanding any contrary provision contained herein, the warranties of Seller hereunder shall become effective and valid only for one year from the date of the bill of lading issued by the carrier at the designated FOB point.
Any claim for breach of Seller’s warranties must be demonstrated to Seller’s satisfaction to have existed at the time of delivery of the Goods and shall be deemed waived by the End-User unless written notice of such claim is actually received by Seller within twelve (12) months after Seller has shipped the Goods to which such claim relates. Seller’s liability under this Agreement shall be expressly limited (at Seller’s option) to the replacement or repair of non-conforming or defective Goods or to the credit for the purchase price of non-conforming Goods. Prior to said repair, replacement, or credit, Seller has the right to inspect the Goods claimed to be defective or non-conforming, and, if requested by Seller, End-User shall return such Goods to Seller at Seller’s direction and expense. No Goods are to be returned to Seller without Seller’s prior written authorization. THE REMEDIES SET FORTH HEREUNDER SHALL CONSTITUTE THE EXCLUSIVE REMEDIES AVAILABLE TO THE END-USER AND ARE IN LIEU OF ALL OTHER REMEDIES.
14. LIMITATION OF LIABILITY.
IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE FURNISHING, PERFORMANCE, OR USE OF THE GOODS SOLD HEREUNDER (IF AT ALL), WHETHER AS A RESULT OF BREACH OF CONTRACT, BREACH OF WARRANTY, THE NEGLIGENCE OF SELLER OR OTHERWISE. SELLER’S liability under no circumstances will exceed the purchase price for the Goods for which liability is claimed.
15. LIMITATION OF ACTIONS OR SUITS RELATING TO GOODS.
Any action, suit, demand, or claim of any kind, whether arising out of contract, warranty, statute, common law, or otherwise, shall be commenced within one year from the date any related Goods were delivered by Buyer or shall forever be barred. The Parties agree and recognize that given the type of Goods being sold by Seller that this provision is necessary for the preservation of information and evidence related to any claims and that Seller’s ability to investigate and evaluate claims beyond this time frame is so significantly reduced as to render them unfair.
16. INDEMNIFICATION: ASSUMPTION OF RISK.
To the extent permitted by law, Buyer agrees to indemnify and hold Seller (and its respective agents and employees) harmless from and against any and all liabilities, damages, losses, actions, causes of action, claims (including, but not limited to, claims of patent infringements), expenses, costs (including, but not limited to, attorney’s fees), fines, penalties and any other expenses directly or indirectly arising from Buyer’s actual use or intended use of the Goods, or from anyone whom Buyer allows or permits to use the Goods. The Buyer agrees to assume all risk of loss or damage to person or property while on the premises of Seller or of Seller’s related corporations. To the extent permitted by law, Buyer (on behalf of itself and all of its agents and employees) hereby releases and forever discharges Seller (and its respective employees and agents) from any and all claims, demands, causes of action, liabilities, losses or damages resulting or arising from Buyer’s presence (or the presence of the Buyer’s employees and agents) on the premises of Seller. The Buyer warrants to Seller that the Buyer has the authority to grant this release on behalf of the Buyer’s agents and employees.
17. RETURNS.
The Goods or parts thereof sold herein may in no case be returned to Seller without first obtaining Seller’s written consent. Any request for return and credit must be filed with Seller and shall include purchase order number, approximate date shipped, and any and all other identifying numbers (such as invoice number, date of invoice, P.O. numbers, etc.). Each request for return of Goods for credit should state the type and quantity of Goods, the part numbers, and the reasons for the return. If return authorization is granted, Goods shall be returned in a clean, well-packaged condition. Any authorized return shall be shipped at Buyer’s sole expense. No credit allowance on defective items will be made and no replacement for defective items will be shipped in any event, unless the alleged defective items are, among other things, established to Seller’s satisfaction to be defective after opportunity for suitable testing and inspection by Seller. If a return is authorized by Seller after thirty (30) days, a restocking fee of 20% will be charged. All freight charges are non-refundable.
18. BANKRUPTCY OR INSOLVENCY OF BUYER.
If the financial condition of the Buyer at any time is such as to give Seller, in its judgment, reasonable grounds for insecurity concerning Buyer’s ability to perform its obligations under this agreement, Seller may:
a. by notice in writing to Buyer, cancel this agreement, without judicial intervention or declaration of default of Buyer and without prejudice to any right or remedy which may have accrued or may accrue thereafter to Seller;
b. require full or partial payment in advance and suspend any further deliveries (or continuance or the work to be performed by Seller) until such payment has been received; or
c. make shipments C.O.D. or on other prepayment terms specified by the Seller.
19. BUYER DEFAULT.
If Buyer fails, with or without cause, to furnish Seller with specifications and/or instructions, or refuses to accept deliveries of any substantially conforming Goods sold hereunder, or is otherwise in default of this contract, or repudiates this contract, or fails to pay any invoices when due, then in addition to all other remedies allowed by law, Seller may, without notice to Buyer, (1) bill and declare due and payable all undelivered Goods; and/or (2) defer shipment of the Goods under this contract or any other contract between the parties; and/or (3) cancel any undelivered portion of the contract in whole or in part.
20. VENUE AND JURISDICTION OF ACTION TO ENFORCE OR RELATED TO THIS AGREEMENT.
Any action or suit or legal proceeding for claim of damages arising under or related to the enforcement of this contract or any provision or terms within it, or any breach thereof, shall be venued in any state or federal district court located in the County of Scott, State of Iowa. Buyer waives any assertion, claim, or argument that venue shall be in any other location other than set forth above. Buyer agrees to submit to the exclusive jurisdiction of the state or federal district court in the County of Scott, State of Iowa.
21. MISCELLANEOUS.
(a) No Assignment. Neither party may assign any of its rights or delegate any of its duties hereunder without the prior written consent of the other.
(b) No Waiver. The failure of Buyer or Seller at any time to require the performance of any obligation will not affect the right to require such performance at any time thereafter. The waiver of any remedy with respect to any default will not be taken as a waiver of any remedy for any succeeding default. Unless otherwise provided herein, no limitation or restriction on the remedies available to either party is intended by these Terms.
(c) Invalidity and Interpretation. The invalidity or unenforceability of any provision hereof, whether in whole or in part, for any reason, will not affect the remaining provisions, and all Terms will be construed in all respects as if any such invalid or unenforceable provision(s) were omitted. Course of dealing, course of performance, course of conduct, prior dealings, usage of trade, community standards, industry standards, and customary practice or interpretation in matters involving the sale, delivery, installation, use, or service of the Goods and services provided hereunder or similar or dissimilar equipment, goods, or services shall not serve as references in interpreting the Terms. No consideration shall be given under this Agreement or in the interpretation of the same as to who drafted the Agreement or its Terms.
(d) Entire Agreement. These Terms, together with the applicable Quotes, Invoices, and Purchase Orders for the Goods and any related documents expressly agreed to in writing by the parties, contain the complete and exclusive statement of the terms of agreement of the parties with respect to the subject matter hereof and supersede all prior understandings, representations, and warranties, written or oral. Buyer’s obligations hereunder are independent of any other obligations Buyer may have under any other contract or account with Seller, and Buyer may not set off any payments or obligations due it under any other such contract or account with Seller against any payments due hereunder. Agents and salespersons of Seller have no authority to change or modify the written terms of the agreement, and no revisions shall be effective unless set forth in a writing signed by an authorized representative of Seller.
(e) Conflicts. In the event of any ambiguity or conflict between or among these Terms, the Quote, Invoices, and Purchase Orders and any other agreement or writing signed by Seller, the express terms of the Quote shall control, and if there are no such terms with respect to the subject matter in question, these Terms shall govern and control. In no event, however, shall any additional, differing, conflicting, supplemental, or other terms or conditions stated in any purchase order, acknowledgment, contract, or other document issued by Buyer have any effect on the contract between the parties or bind Seller unless such terms are specifically accepted in writing by an officer of Seller.
22. BUYER’S ACCEPTANCE; REPRESENTATION.
By execution of this document the undersigned intends to, and warrants and represents that he or she has full power and authority to fully bind his or her principal to these Terms. Buyer further represents and acknowledges that Buyer understands the language contained in each provision of this Agreement and has had an opportunity to seek advice from the legal counsel of their choosing before signing.