The sale of goods (the “Order”) to Buyer is subject to the following terms and conditions (the Order together with these Sales Contract Terms and Conditions are hereinafter referred to as the “Contract”). THE CONTRACT EMBODIES THE TERMS AND CONDITIONS APPLICABLE TO THE SALE OF THE GOODS NOTWITHSTANDING ANY TERMS AND CONDITIONS PROPOSED BY BUYER AND SELLER’S AGREEMENT TO SELL AND DELIVER THE GOODS TO THE BUYER IS EXPRESSLY MADE CONDITIONAL ON BUYER’S ACCEPTANCE OF THE CONTRACT. ACCEPTANCE OF THE GOODS OR PAYMENT FOR THE GOODS BY BUYER SHALL BE DEEMED CONFIRMATION OF BUYER’S AGREEMENT TO AND ACCEPTANCE OF THE TERMS OF THE CONTRACT AS STATED HEREIN:
Unless otherwise expressly provided in the Order, the stated prices do not include duties or sales, use, gross receipts, excise or similar taxes and, the amount of any such present or future taxes or duties or increases therein applicable to the goods covered by this Contract and any such amounts or the sale thereof, shall be added to the price and paid by the Buyer. At Seller’s request, Buyer shall provide Seller with tax-exemption certificates acceptable to the relevant taxing authorities. Unless otherwise expressly provided on the invoice hereof, the prices stated are FCA (Free Carrier per latest Incoterms®) Seller’s factory.
Unless otherwise agreed or mandated, all payments are to be made net 30 days after date of invoice. Seller may at any time require full or partial payment in advance of delivery, or satisfactory assurances or security from Buyer that invoices will be paid when due if in Seller’s judgment the same at any time becomes necessary. If payment is not made when due, interest at the lower of 1 1/2 % per month or the highest rate permitted by applicable law will be charged thereon and paid by Buyer from the due date thereof until paid. In the event Buyer does not pay within the terms of this Contract, all collection costs incurred by Seller, including attorneys’ fees, will be paid by Buyer. Time and terms of payment are of the essence and if any default therein be made by Buyer, Seller shall have the right to terminate this Contract or to defer or to discontinue further shipments hereunder until past due payments are made or satisfactory assurances of Buyer’s financial responsibility are received by Seller (without prejudice, however, to any rights or claims which Seller may have in law or in equity) and such right shall continue irrespective of any prior failure on the part of Seller to exercise such right. Each shipment is to be considered a separate sale.
IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, SELLER WARRANTS ONLY THAT THE GOODS COVERED HEREBY WILL CONFORM TO THE DESCRIPTION ON THE ORDER, THAT SELLER WILL CONVEY GOOD TITLE THERETO, FREE FROM ANY LIEN OR ENCUMBRANCE UPON PAYMENT IN FULL OF THE PRICE DUE FOR THE GOODS, AND THAT THE GOODS WILL BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP UNDER NORMAL USE FOR A PERIOD FROM THE DATE OF PURCHASE AS DESCRIBED IN THE WARRANTY SET FORTH AT https://www.galvion.com/pages/warranty/ (THE “PRODUCT WARRANTY’). ADDITIONAL TERMS AND CONDITIONS OF THE FOREGOING WARRANTY (INCLUDING THOSE APPLICABLE TO RETURNS OF GOODS) ARE ALSO STATED IN THE PRODUCT WARRANTY. THE FOREGOING WARRANTY SUPERSEDES ANY ORAL OR WRITTEN WARRANTIES OR REPRESENTATIONS, MADE OR IMPLIED IN ANY MANUAL, LITERATURE, ADVERTISING OR OTHER MATERIALS.
ALL WARRANTIES IMPLIED BY STATE LAW, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY LIMITED TO THE DURATION OF THE PRODUCT WARRANTY. SELLER WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL OR SPECIAL DAMAGES. SELLER’S LIABILITY AND BUYER’S EXCLUSIVE REMEDY SHALL BE EXPRESSLY LIMITED TO THE REPAIR OR REPLACEMENT OF DEFECTIVE GOODS, OR THE REPAYMENT OF THE PURCHASE PRICE OR THE GRANTING OF A REASONABLE ALLOWANCE ON ACCOUNT OF ANY DEFECTS, AS SELLER IN ITS SOLE DISCRETION MAY ELECT.
The scheduled dates for shipment of the products are estimated based on current and anticipated supplies and manufacturing capacity at the time of quotation and may be quoted as weeks after receipt of order. All delivery dates are estimates only, and Seller shall not be liable for any damages relating to failure to ship the products as of a certain date. Seller shall not be liable for any delay in fulfillment of or failure to fulfill this Contract arising from any factory or labor conditions, fire, failure or delay in Seller’s usual sources of supply by the acts or omissions of Buyer, its agents, subcontractors or material suppliers, or any other cause not reasonably within the control of Seller. In the event of any delay in delivery due to a cause beyond Seller’s control, unless otherwise agreed, the time for delivery shall be deemed extended for a period equal to the period of delay.
5. TRANSPORTATION AND DELIVERY
Unless otherwise provided on the invoice hereof, all deliveries of goods are FCA Seller’s factory and Seller assumes no liability for loss or damage to the goods after delivery, and risk of loss with respect to the goods passes to Buyer at the delivery point. Seller reserves the right to ship and bill 10% more or less in quantity of the products than the quantity specified on the face hereof.
Buyer shall inspect the products immediately on its receipt, and shall within fourteen (14) days after arrival give written notice to Seller of any matter by reason whereof it may allege that the products are not in accordance with the agreement. If Buyer shall fail to give such notice, the products shall be deemed to be in all respects in accordance with the agreement terms. All products made to special specifications are deemed to be inspected and accepted before shipment is made, and may not be canceled.
No changes or modifications to the Contract shall be binding on Seller or Buyer without the written consent of both Seller and Buyer.
This contract is not subject to cancellation by the Buyer except with Seller’s prior written agreement and after full payment by Buyer of Seller’s cancellation charges which shall be equal to all amounts incurred by Seller for materials, labor and overhead in respect of the canceled goods plus reasonable contract profits.
Buyer shall indemnify and hold the Seller harmless from and against any and all claims, demands, liabilities, costs and expenses (including attorneys’ fees) that Seller may incur because of any action brought by a third party based on any related to express or implied warranties as to Seller’s products based on representations made by Buyer, except to the extent such claims arise out of a breach by Seller of the warranties set forth in the Contract.
10. EXPORT COMPLIANCE
Galvion products including hardware, software, technology or services transferred are subject to U.S., Canada, U.K. and other countries’ export control restrictions including the International Traffic in Arms Regulations (ITAR). Galvion products must only be exported, re-exported, transferred (including in-country transfers) or otherwise disposed of in compliance with the regulations, licensing and other applicable requirements of all the appropriate U.S. or other export regulations. Diversion contrary to US law is expressly prohibited.
(a) The waiver by Seller of any term, provision or condition hereunder shall not be construed to be a waiver of any other terms, provisions or conditions hereof, nor shall such waiver be deemed a waiver of a subsequent breach of the same term, condition or provision.
(b) This Contract and all questions of validity, interpretation, performance and nonperformance shall be governed by the laws of the Seller’s address without reference to its principles of conflict of laws.
(c) Buyer is hereby notified of Seller’s objection to any of Buyer’s terms inconsistent herewith and to any additional terms proposed by Buyer in accepting this Contract and such inconsistent or additional terms shall not become a part of this Contract unless expressly accepted in writing by Seller. Neither Seller’s subsequent lack of objection to any such terms, nor the delivery of goods covered hereby, shall constitute or be deemed an agreement by Seller to any such terms.
(d) This Contract supersedes all prior negotiations and understandings of the parties and contains the complete and final agreement between Seller and Buyer concerning the subject matter hereof and no other agreement in any way modifying any of the said terms and conditions will be binding upon Seller unless made in a writing specifically referring to this Contract and signed by Seller.