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Standard Conditions of Sale Applying to Products Sold by Kepco, Inc.
This invoice is expressly limited to and made condition upon the terms and conditions contained herein. Any of the purchaser's terms and conditions which are in addition to or different from those contained herein and are not separately agreed to in writing (except additional provisions specifying quantity, character of the products ordered, and in shipping instructions) are hereby objected to and shall be of no effect. Objection to any terms and conditions contained herein shall be deemed to have been waived if written notice of such objection is not received by Kepco, Inc. (hereinafter "company") within ten days of the date of the acknowledgment. The purchaser will in any event be deemed to have assented to all terms and conditions contained herein if any part of the products described herein is accepted.
TAXES
The Company's prices do not include sales, use, excise, or similar taxes. Consequently in addition to the price specified herein, the amount of any present or future sales, use, excise, or other tax applicable to the sale or use of the products sold hereunder shall be paid by the the Purchaser or in lieu thereof the Purchaser shall provide the Company with a tax-exemption certificate acceptable to the taxing authorities.
PURCHASE PRICE
Unless otherwise stated by the Company, prices, terms of payments and pricing policies will be those set forth in the Company's published price list and pricing policies in effect at the time of shipment. Quantity discounts are based on the number of units actually shipped to and accepted by the purchaser. In the event the purchaser fails to take the contracted quantity Kepco reserves the right to bill back the purchaser and the purchaser agrees to pay for the difference between the discount actually earned and the discount taken.
PAYMENTS
Pro rata payments shall become due as shipments are made. If shipments are delayed by the Purchaser, payments shall become due on the date when Company is prepared to make shipment. If the work to be performed hereunder is delayed by the purchaser, payments shall be made based on the Purchase price and the percentage of completion. Products held for the Purchaser shall be at the risk and expense of the Purchaser.If the financial condition of the Purchaser at any time is such as to give the Company in its judgement, reasonable grounds for insecurity concerning the Purchaser's ability to perform his obligation under this contract, the Company may require full or partial payment in advance or may suspend any further deliveries to continuance of the work to be performed by the Company until such payment has been received. Failure to furnish such payment within ten days of demand by the Company shall constitute a repudiation of the contract and in such event the Company shall be entitled to receive reimbursement for its cancellation charges. In the event of bankruptcy or insolvency of the Purchaser or in the event any proceeding is brought by or against the Purchaser under the bankruptcy and insolvency laws, the Company shall be entitled to cancel any order outstanding at any time during the period allowed for filing claims against the estate and shall receive reimbursement for its cancellation charges. In the event of payments beyond agreed upon terms Kepco reserves the right to bill the purchaser for interest at the rate of one point five percent (1.5%) per month.
DELIVERY
Shipping dates are approximate and are based upon prompt receipt of all necessary information. The Company shall not be liable for delays in delivery or failure to manufacture or deliver (a) due to causes beyond its reasonable control, or (b) due to acts of God, acts of the Purchaser, acts of civil or military authority, priorities, fires, strikes, floods, epidemics, quarantine restrictions, war, riot, delays in transportation or car shortages, or (c) due to inability due to causes beyond its reasonable control to obtain necessary labor, materials, components or manufacturing facilities or (d) due to any other commercial impracticability. In the event of any such delay, the date of delivery shall be deferred for a period equal to the time lost by reason of the delay.
TRANSPORTATION
Unless otherwise agreed in writing by the Company, delivery of the products hereunder shall be made f.o.b. point of shipment, with transportation expenses paid by the Purchaser and risk of loss or damage to products in transit shall fall upon Purchaser, whose responsibility it shall be to file claims with the carrier.
WARRANTY
THE WARRANTY HEREIN CONTAINED IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE WARRANTY OF MERCHANTABILITY, unless otherwise stated on the face hereof.The Company's products are warranted for a time period from date of delivery to be free from defects in materials and workmanship and to conform to the specifications furnished or approved by Company Liability under this warranty shall be limited to the repair or replacement of any defective product at Company's option. The warranty time period is determined by the model.
If any defect within this warranty appears within the warranty period the Purchaser shall promptly notify the Company in writing. No material will be accepted for repair or replacement without the written authorization of the Company. Upon such authorization and accordance with instructions of the Company, parts or materials for which replacement is requested shall be returned to the Company for examination, with shipping charges prepaid by the Purchaser. Final determination as to whether a product is actually defective rests with the Company.
This warranty does not extend to any product which has been subjected to misuse, neglect, accident, improper installation, or to use in violation of instructions furnished by the Company. The warranty does not extend to or apply to, any unit which has been repaired or altered outside of the Company's factory by persons not expressly approved by the Company.
LIMITATION OF LIABILITY
The Company's liability on any claim of any kind, including negligence and breach of warranty, for any loss or damage resulting from, arising out of, or connected with this contract or from the performance or breach thereof, or from the manufacture, sale, delivery, resale, repair or use of any product covered by or furnished under this contract shall in no case exceed the price allowable to the product or part thereof which gives rise to the claim, except as provided in the paragraph herein entitled "patents". In no event shall the Company be liable for special or consequential damages.
PATENTS
The Company shall defend any suit or proceeding brought against the Purchaser so far as based on a claim that any product or any part thereof, furnished under this contract constitutes an infringement of any patent of the United States. If notified promptly in writing and given authority, information and assistance (at the Company expense) for the defense of same, and the Company shall pay all damages and costs awarded therein against the Purchaser in case said product or any part thereof is in such suit held to constitute infringement and the use of said product or part is enjoined, the Company shall at its own expense and its option, either procure for the Purchaser the right to continue using said product or part or replace same with non-infringing comparable products or modify it so it becomes non-infringing, or remove said product or part and refund the purchase price and the transportation and installation costs thereof. The foregoing states the entire liability of the Company for patent infringement of said product or any part thereof.Notwithstanding the provisions of the preceding paragraph, the Purchaser shall hold the Company harmless against any expenses of loss resulting from infringement of patents or trademarks arising from loss resulting from infringement of patents or trademarks arising from compliance with Purchaser's designs or specification or instructions.
The sale of products or parts thereof by the Company does not convey any license, by implication, estoppel, or otherwise, under patent claims covering combination of said product or parts with other devices or elements.
SECURITY TITLE
Security title and right of possession to the products sold hereunder shall remain with the Company until all payments hereunder (including deferred payments whether evidenced by notes or otherwise) shall have been made in full in cash and the Purchaser agrees to do all acts necessary to perfect and maintain such security right and title in the Company.
CANCELLATION
The Purchaser may cancel his order upon written notice and upon payment to the Company of cancellation charges which shall take into account, among other things, expenses incurred and commitments already made by the Company.
GOVERNMENT CONTRACTS
The Company will comply with all provisions required to be inserted in the customer's purchase orders in accordance with the terms of any applicable federal statute, except that as to the Armed Services Procurement Regulation clauses pertaining to technical data, the Company shall be required to comply only with the limited rights provision contained therein.
NONASSIGNMENT
Any assignment of this order, or any rights or obligations hereunder, by the Purchaser or the Company, without the written consent of the other party shall be void.
APPLICABLE LAW
This agreement and matters connected with the performance thereof shall be construed, interpreted, applied and governed in all respects by the laws of the State of New York.The parties and their assigns and all persons claiming rights under this document agree that the state and/or federal courts located in the City and State of New York shall have exclusive jurisdiction (personal and subject matter) over the parties, and all actions, suits and proceedings arising out of and or based on this document.
GENERAL
This agreement shall be construed to be between merchants.The Company will comply with all applicable Federal, State, and local laws, except as otherwise provided in the paragraph herein entitled "Government Contracts" and specifically represents that any goods to be delivered hereunder will be produced in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended.
Except as may be expressly provided to the Contrary in writing, the provisions of this contract are for the benefit of the parties hereto and not for any other person.
This instrument contains the entire and only agreement between the parties hereto relating to the subject matter hereof, and any representation, affirmation of fact and course of prior dealings, promise or condition in connection therewith or usage of the trade not incorporated herein shall not be binding on either party. No charge, modification, rescission, discharge, abandonment, or waiver of these standard conditions of sale shall be binding upon the Company unless made in writing and signed on its behalf by any officer of the Company or its General Manager.
