The terms and conditions of sale contained herein apply to all quotations and purchase orders entered into by the COSA Xentaur Corp. hereinafter referred to as the Seller. These terms and conditions supersede and replace any terms and conditions attached to buyer’s purchase order; and Seller’s acceptance is expressly conditioned upon Buyer’s acceptance of these terms and conditions. No waiver, alteration, or modification of any of the provisions hereof shall be binding unless in writing and signed by a duly authorized representative of the Seller.
All orders or contracts must be approved and accepted by the Seller at its office in Houston, Texas.
Notwithstanding the Fob. point specified in this document, Seller shall not be responsible for risk or loss of or damage to the items after deliver to the carrier and, except for C.O.D. sales, title to all items passes to Buyer upon delivery to carrier. On C.O.D sales, title passes on delivery and payment by Buyer.
Unless otherwise directed by the Buyer, the method of shipment will be selected by the Seller. Insurance will be obtained automatically unless otherwise instructed by Buyer prior to shipment.
If this order calls for delivery of Seller’s standard products, without modification, Seller agrees (i) to assume the defense of any suit brought against Buyer for infringement of United States Letters Patent arising solely from use and/or sale of said standard products;
(ii) to defray the expense of such defense; and (iii) to indemnify Buyer against any money damages and/or costs awarded in such suit; provided: (1) that Buyer promptly inform Seller in writing of any claim with respect to which Seller assumes responsibility hereunder, (2) that Seller is given exclusive control of the defense of such suit and all negotiations relative to the settlement thereof and (3) Buyer reasonably cooperates with Seller when requested for documents and witnesses necessary to such defense The foregoing states the entire liability of Seller for patent infringement. If this order calls for a product made to Buyer’s design or modification, Buyer agrees to indemnify and hold Seller harmless from any claims of patent infringement thereon.
Data supplied by the Seller to the Buyer shall be conclusively presumed to pertain to items, components, or processes developed at Seller’s private expense, and no rights in such data or in any inventions, discoveries, patents, trademarks, or copyrights shall pass to the Buyer. Correspondingly, if data is furnished by the Buyer, no rights therein will pass to the Seller provided, however, that Seller may copy and use such data to the extent necessary to furnish the items or services called for hereunder.
The validity and effect of this order, as well as its interpretation, operations, and effect shall be determined exclusively by the principles of law and equity of the State of Texas.
If any of the terms and conditions of this order or any part thereof should be declared illegal by any court of law, such part of such term or terms shall be considered deleted from this order, the remaining to be unaffected and in full force and effect.
Unless otherwise specifically stated, all prices indicated on the face hereof are Fob Seller’s plant and may or may not include transportation charges, local and state taxes, tariffs, etc. Should this document be used as a quotation form, the prices, as above described, will be open for acceptance for sixty (60) days or such other period as may be specified herein.
The delivery date(s) specified on the face hereof are based on Seller’s best estimate of a realistic time when delivery to the carrier will be made. Unless otherwise agreed to in writing, Seller reserves the right to make partial shipments. In the event Seller shall fail to make delivery within the time specified including all extensions thereof, the Buyer may terminate or cancel an order for cause or default only by a notice in writing by registered, certified mail, or telefax effective five (5) days after receipt. Claims for shortages in quantity or for damage in shipment due to negligence shall deemed waived unless made in writing to Seller within ten (10) days after delivery. Seller will not be liable for any loss or damages resulting from delays which are beyond its control and, in any case, will Seller be liable for consequential or special damages (including, but not limited to, lost profits, inspections cost, or increased costs of the Buyer’s performance of its contract obligations) however caused.
If a purchase order is cancelled within 10 days from the order placement date, and the product(s) have not been shipped, there is no cancellation fee. For purchase orders cancelled after 10 days from order placement date, there is a 25% cancellation fee assuming the product(s) have not been shipped. Return of product(s) that have been shipped must be authorized by the factory (with a Return Authorization Number) and if authorized, will be subject to a cancellation fee of 50%. No product returns will be considered after 30 calendar days from the shipment date.
The Seller’s liability on any claim of any kind, including negligence, or 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 item or services covered by or furnished under this contract shall in no case exceed the price allocable to the item or service or part thereof which gives rise to the claim. In no event shall the Seller be liable for special or consequential damages.
The Seller shall not be liable for delays in deliver or failure to manufacture or deliver (1) due to causes beyond its reasonable control, or (2) due to acts of God, acts of the Buyer, acts of civil or military authority, priorities, fires, strikes, floods, epidemics, war, riot, delays in transportation or car shortages, or (3) inability due to causes beyond it reasonable control to obtain necessary labor, materials, components, or manufacturing facilities. In the event of any such delay, the date of delivery shall be extended for a period equal to the time lost by reason of the delay.
Prices quoted for the items described above and acknowledged hereby are firm and not subject to price revision or redetermination. Invoices are due and payable on a strict net thirty (30) days from the date of invoice.
If, in the judgment of the Seller, the financial condition of the Buyer at any time does not justify continuation of production or shipment on the terms of payment originally specified, the Seller may require full or partial payments in advance, and in the event any proceeding is brought by or against the Buyer under the bankruptcy or insolvency laws, the Seller shall be entitled to cancel any order then outstanding and shall receive reimbursement for its cancellation charges. Each shipment shall be considered a separate and independent transaction, and payment therefore shall be made accordingly. If shipments are delayed by the Buyer, payments shall become due on the date when the Seller is prepared to make shipment. If the work covered by the purchase order is delayed by the Buyer, payment shall be made based on the purchase price and the percentage of completion. Products held for the Buyer shall be at the risk and expense of the Buyer. The Seller reserves the right to ship to its order and make collection by sight draft with bill of lading attached.
All invoices to Buyer on open account are due and payable thirty (30) days after the date of the invoice. Prorated payments shall be due for partial shipments. The making of payments at the times they respectfully fall due shall be considered as of the essence of this agreement, and failure or substantial delays in making such payments shall constitute a material breach of contract entitling Seller, at its option, to any or all of a Seller’s remedies for breach, including rescission. Until the purchase price is paid in full to Seller, buyer merely grants Sellers security interest in all products covered by their order.
Except as herein expressly provide to the contrary, the provisions of this agreement are for the benefit of the parties to the contract and not for the benefit of any other person. Any assignment or an order, or any rights thereunder, by the Buyer without written consent of the Seller, shall be void.
COSA Xentaur Corp. warrants the products delivered to be free from defects in material and workmanship at the time of delivery to the Fob. point specified in the purchase order, its liability under this warranty being limited to repairing or replacing at COSA Xentaur Corp. option, items which are returned to it prepaid within the warranty period specified in the respective product data sheet from delivery to the carrier and found to Seller’s satisfaction, to have been so defective. Any product without a specified warranty period in a respective product data sheet is subject to a 90 day warranty.
In no event shall COSA Xentaur Corp. be liable for consequential damages. NO PRODUCT IS WARRANTED AS BEING FIT FOR A PARTICULAR PURPOSE AND THERE IS NO WARRANTY OF
MERCHANTABILITY. This warranty applies only if: (i) the items are used solely under the operating conditions and manner recommended, specifications, or other literature; (ii) the items have not been misused or abused in any manner or repairs attempted thereon; (iii) written notice of the failure within the warranty period is forwarded to COSA Xentaur Corp. and the directions received for properly identifying items returned under warranty are followed; and (iv) the return notice authorizes COSA Xentaur Corp. to examine and disassemble returned products to the extent the Company deems necessary to ascertain the cause of failure. The warranties stated herein are exclusive. THERE ARE NO OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, BEYOND THOSE SET FORTH HEREIN, and COSA Xentaur Corp. does not assume any other obligation or liability in connection with the sale or use of said products. COSA Xentaur Corp. reserves the right to make any changes to improve the performance of the instrument at any time and without notice.
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