FECON, INC SALES TERMS AND CONDITIONS
1. Agreement. These Standard Terms and Conditions (“Terms and Conditions”), together with any information or documents incorporated herein by reference, contain the entire and exclusive agreement (“Agreement”) between Fecon, Inc. (“Seller”) and Seller’s Buyer (“Buyer”). This offer expires sixty (60) days from its date, unless goods are subsequently shipped by Seller and accepted by the Buyer. Notwithstanding anything in the foregoing to the contrary, if Buyer has heretofore made Seller an offer with respect to any goods (“Goods”) and/or services (“Services”) to be provided hereunder (collectively, “Items”), this Agreement shall not operate as an acceptance of the Buyer’s offer, but shall be deemed a counteroffer. Seller expressly limits and makes expressly conditional any acceptance by Buyer of an offer to these Terms and Conditions. Any terms proposed by the Buyer that are additional or contrary to these Terms and Conditions are hereby objected to unless Seller otherwise expressly agrees in writing.
2. Law. This Agreement shall be governed by and interpreted in accordance with the substantive (and not conflicts) laws of the State of Ohio, U.S.A. The rights and obligations of the parties shall not be governed by the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods or the related Convention on the Limitation Period in the International Sale of Goods. Other than for collection or equitable actions against Buyer, any cause of action arising hereunder or related in any way hereto shall be brought only in the federal or state courts of Hamilton County, Ohio and Buyer hereby irrevocably submits to the jurisdiction of such courts. Any action arising out of or related to this Agreement against Seller must be commenced within one (1) year from the date the right, claim, demand or cause of action shall first occur, or be barred forever. English is the official language of this Agreement and this Agreement shall be interpreted only in English.
3. Term. The term of this Agreement shall commence with the date hereof and continue until the completion of the Services or the delivery of the Goods, as applicable, unless this Agreement is terminated as provided in other provisions of this Agreement. In the event of expiration or termination hereof for any reason, Buyer shall continue to observe the limitations and restrictions set forth in Sections 2, 12-14, 16 and 20 hereof.
4. Delivery, Title, and Risk of Loss. All quoted delivery dates and/or periods are approximate. The delivery periods shall commence when Seller has acknowledged receipt of complete specifications and/or applicable documents required to effect shipment, such as letter of credit, import license, exchange permit, shipping instructions, etc. Seller reserves the right to make delivery in installments, unless otherwise expressly stipulated in this contract; and all such installments, when separately invoiced, shall be paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve the Buyer of its obligations to accept remaining deliveries. Claims for shortages or other errors must be made in writing to Seller within thirty (30) days after receipt of shipment, and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by the Buyer. Notwithstanding the foregoing or the provisions of INCOTERMS, title to the Goods, and all accessories to or products or proceeds of the Goods, shall remain with Seller until payment in full of the purchase price and of other amounts owing by the Buyer. To the extent legal title to the Goods shall be deemed by law to pass to the Buyer at the time of delivery and prior to performance of all of the Buyer’s obligations hereunder, equitable title shall remain in Seller until payment in full of the purchase price and the Buyer shall grant, and by acceptance of the Goods shall be deemed to have granted, to Seller, a first security interest and charge in all Goods to secure payment of the purchase price and other amounts owing by the Buyer and performance of all the Buyer’s obligations under this contract, as well as the right to make any filings and take any actions necessary in order to perfect such security interest. Seller may reclaim any Goods delivered to the Buyer or in transit if the Buyer shall fail to make payments when due.
5. Shipment. Seller shall deliver the Items Ex Works (Incoterms I.C.C. 2000). During shipment and during any return shipment to Seller, Buyer shall bear all risk of loss thereto, and carry adequate insurance, for any and all loss, damage or destruction. Any charges Seller may be required to pay or collect with respect to the sale, purchase, delivery, storage, processing, use, consumption, or transportation of the Goods shall be for the Buyer’s account. Method and route of shipment will be at the discretion of Seller unless the Buyer shall specify otherwise and any additional expense of the method or route of shipment specified by the Buyer shall be borne by the Buyer.
6. Returns. No Goods may be returned for credit without prior written approval, bearing a return authorization number, from Seller’s home office. Goods for which return is authorized must be shipped prepaid by Buyer as directed by Seller.
7. Storage. If the Goods are not shipped within fifteen (15) days after notification to the Buyer that they are ready for shipping, for any reason beyond Seller’s reasonable control, including the Buyer’s failure to give shipping instructions, Seller may store such Goods at the Buyer’s risk in a warehouse or yard or on Seller’s premises. In such event, (i) Seller shall notify Buyer of the placement of any Goods in storage, (ii) Seller’s delivery obligations shall be deemed fulfilled and all risk of loss or damage shall thereupon pass to Buyer, (iii) any amounts otherwise payable to Seller upon delivery shall be payable upon presentation of Seller’s invoices therefor and its certification as to such cause, (iv) promptly upon submission of Seller’s invoices Buyer shall reimburse Seller for all expenses incurred by Seller, such as preparation for, and placement into storage, handling, storage, inspection, preservation and insurance, and (v) when conditions permit and upon payment of all amounts due hereunder, Seller shall assist and cooperate with Buyer in any reasonable manner with respect to the removal of any Goods which have been placed in storage. Buyer shall pay handling, transportation, and storage charges at the prevailing commercial rates on submission of invoices therefor.
8. Descriptive Literature and Modifications. Catalogues, product brochures, photographs, and other illustrations are a general representation of the products offered but shall not be taken as precise and shall not form part of this contract. Seller reserves the right to make changes in design, specifications, or materials that in Seller’s opinion are an improvement or necessary because of priorities or regulations established by governmental authority or nonavailability of materials from suppliers.
9. Price and Payment. Buyer shall pay for the Items in U.S. Dollars at the prices and on the payment terms described on the Purchase Order or Acknowledgement. The prices for the Items covered by this offer are Seller’s prices for such Goods and/or Services with (i) the exclusive Warranty or repair or replacement of defective Goods as found in Section 12 below, and (ii) the Exclusion of Consequential Damages and Disclaimer of Liability, as found in Section 13, below. If the Buyer desires for Seller to provide a greater or additional warranty and/or to be liable for some or all of the matters disclaimed in Section 12 or 13, and/or to be liable for consequential or incidental damages, then the Buyer must notify Seller before the Buyer accepts (or is deemed to accept) this offer pursuant to Section 1, in which event Seller will amend this offer to reflect higher sales prices reasonably compensating Seller for assuming that additional exposure. In the absence of such a notification, by accepting this offer the Buyer is accepting such limitations and disclaimers in exchange for the lower prices set forth herein. Unless otherwise stipulated on the Purchase Order or Acknowledgement payment shall be “net 30,” terms of payment are cash in full no later than thirty (30) days from the date of shipment, without discount. Payments not made when due shall bear interest at the rate of 1½% per month from date of shipment until paid in full. If, during the period of performance of an order, the financial condition of the Buyer is determined by Seller not to justify the terms of payment specified, Seller may demand full or partial payment in advance before proceeding with the work, or satisfactory security or guarantees that invoices will be promptly paid when due, or, at its option without prejudice to other lawful remedies, may defer delivery or cancel this contract. If delivery is deferred, the Goods may be stored as provided in Section 7 hereof and Seller may submit a new estimate of costs for completion based on prevailing conditions. If the Buyer defaults in any payment when due, or in the event any voluntary or involuntary bankruptcy or insolvency proceedings involving the Buyer are initiated by or against the Buyer, then the whole contract price shall immediately become due and payable on demand and may include Seller’s reasonable cost of collection, or Seller, at its option without prejudice to its other lawful remedies, may defer, deliver or cancel this contract.
10. Taxes and Other Costs. All amounts payable hereunder are exclusive of all U.S. and foreign federal, state, local, municipal or other excise, sales, use, value-added, stamp, property or similar taxes and fees and all export or import fees, customs duties, tariffs or consular fees, now in force or enacted in the future. All such costs, duties, tariffs, taxes and fees shall be paid by Buyer unless Buyer provides a certificate of exemption or similar document exempting a payment from an applicable tax. If any government or body or similar authority determines that Seller is liable for any such costs, duties, tariffs, taxes and fees, then Buyer shall promptly reimburse Seller for any such liabilities paid by Seller.
11. Export Packing and Documents. Prices include Seller’s standard commercial export packing which may vary depending on whether shipment is made by air or ship. The Buyer shall bear any additional expenses required to satisfy the Buyer’s specifications. Packages will be marked in accordance with the Buyer’s instructions and Seller shall furnish complete packing lists and such other information as may be necessary to enable the Buyer’s agent to prepare documents required for export shipment. The Buyer shall supply Seller with all necessary information and assistance for the most expeditious clearance of each shipment. No shipping containers may be returned to Seller unless such return is accepted in advance by Seller in writing and unless all return freight is prepaid by the Buyer.
12. Warranties. Seller warrants Goods manufactured by it to be of the kind and quality specified or designated by Seller for a period of twelve (12) months for equipment and six (6) months for attachments from date of shipment unless otherwise stated in the sales agreement. If within such period any such Goods shall be proved to Seller’s satisfaction to be non-conforming, such Goods shall be repaired or replaced at Seller’s option. Seller’s warranty obligations shall be limited to such repair or replacement, shall be Buyer’s sole and exclusive remedy hereunder and shall be conditioned on Seller’s receiving written notice of any alleged non-conformity within ten (10) days after its discovery and, at Seller’s option, return of such Goods to Seller’s factory, Duty Paid. Any such non-conformity shall not be cause for the extension of the duration of the warranty specified in this Section 12. If such non-conformity cannot be corrected by Seller’s reasonable efforts, the parties shall negotiate an equitable adjustment. The limited warranties contained in this Section 12 shall be valid and remain in effect only if: (i) the Goods are used, maintained, installed, stored and repaired by Buyer as directed by all applicable documentation; (ii) Buyer has paid Seller all sums due hereunder; (iii) Buyer has not in any way modified the Goods; (iv) the claim is unrelated to normal wear and tear, corrosion or erosion, or to any Good normally consumed in operation or that has a normal life inherently shorter than the applicable warranty period; (v) the claim is unrelated to the failure by Buyer to follow the most current instructions issued by the manufacturer with respect to the proper use of the Goods; (vi) the claim is unrelated to the negligence or act of Buyer or any third party; (vii) there has been no operation of the Goods under conditions more severe than those for which the Goods were designed; or (viii) the claim is unrelated to force majeure. With respect to equipment and parts not manufactured by Seller, Seller passes to Buyer the warranties provided by the manufacturer and Buyer shall have breach of warranty rights only against such third party. THE FOREGOING WARRANTIES ARE EXCLUSIVE. Except as warranted in this Section 12, THE ITEMS ARE SOLD HEREUNDER AS IS, NO OTHER WARRANTIES APPLY TO THESE GOODS OR SERVICES, AND NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, WHETHER IN RELATION TO MERCHANTABILITY, HIDDEN DEFECTS, FITNESS FOR PARTICULAR PURPOSE, COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OF TRADE, NONINFRINGEMENT OR OTHERWISE IS GIVEN BY SELLER TO BUYER OR ANY OTHER PARTY. The exclusive remedy shall not be deemed to have failed its essential purpose so long as the Seller is willing and able to replace non-conforming Goods or issue a credit to the Buyer within a reasonable time after the Buyer proves to Seller that a non-conformity is involved.
15. Warranty Compensation Rates & Reimbursements. Buyer shall notify Fecon or Authorized Service Provider prior to any repair if applying for warranty reimbursement. No warranty shall be considered without first obtaining a Warranty Authorization Number by Fecon Inc. Note: A Warranty Registration must be received by Fecon prior to any claim submission for warranty consideration.
(a) Repair Labor: Hours credited will be based on Fecon Service Labor Guidelines, a copy of which can be requested from Fecon Inc. Repairs not listed will be reimbursed based on a reasonable amount of time to perform the repair at the sole discretion of Fecon Inc.
(b) Troubleshooting Labor: If troubleshooting is required, hours credited will be a maximum of 25% of Fecon Service Guidelines to perform the repair or a reasonable amount of time to perform the repair not listed at the full discretion of Fecon Inc.
(c) Travel Labor: If travel is required to perform a repair, Fecon will reimburse a maximum of 4 hours of travel time (round trip) per incident.
(d) Mileage: If travel is required to perform a repair, Fecon will reimburse a maximum of 200 miles (round trip) to approved service provider.
(e) Shipping & Handling: Fecon will compensate shipping and handling of parts needed to remedy a defect at a rate of 10% of shipped parts not to exceed $150 per incident.
(f) Oil & Lubricants: If a breakdown occurred due to a defect in workmanship or material that resulted in the loss of fluids or lubricants, Fecon will reimburse those losses to a maximum of 5 US gallons of Hydraulic fluids and a maximum of 1 US gallon of engine oil. The cost of such fluids shall not be reimbursed beyond the average market value of the fluids at the time of repair. Receipts of replacement fluids must be presented for warranty reimbursement.
In the event that any warrantable repair exceeds any of the limits noted herein, those excesses are the sole responsibility of the buyer.
16. Exclusion of Consequential Damages and Disclaimer of Liability. Seller’s liability shall be limited as provided in Section 12 hereof. SELLER SHALL NOT BE SUBJECT TO AND DISCLAIMS: (1) ANY OTHER OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR OF WARRANTY; AND (2) ANY OBLIGATIONS WHATSOEVER ARISING FROM STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ARISING UNDER ANY OTHER THEORIES OF LAW WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY SELLER, OR ANY UNDERTAKINGS, ACTS, OR OMISSIONS RELATING THERETO. SELLER SHALL NOT UNDER ANY CIRCUMSTANCE BE RESPONSIBLE TO THE BUYER OR ANY THIRD PARTY FOR ANY LOSS OR DAMAGE, INDIRECT, SPECIAL, ORDINARY, EXEMPLARY, CONSEQUENTIAL OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFIT OR USE OR COST OF CAPITAL OR OF SUBSTITUTE USE OR PERFORMANCE), ARISING OUT OF THE TRANSACTIONS CONTEMPLATED HEREUNDER. UNDER NO CIRCUMSTANCES SHALL SELLER’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO ANY WARRANTY CLAIMS HEREUNDER), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY BUYER TO SELLER HEREUNDER (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN SUCH ACTION). Without limiting the generality of the foregoing, Seller specifically disclaims any liability for penalties (including administrative penalties), special or punitive damages, damages for lost profits or revenues, loss of use of products or any associated equipment, cost of capital, facilities, or services, downtime, shut-down, or slowdown costs, spoilage of material, or for any other types of economic loss. If Buyer transfers title to, or leases the Items sold hereunder to, or otherwise permits or suffers use by, any third party, Buyer shall obtain from such third party a provision affording Seller and its subcontractors and suppliers the protection of the preceding sentence. If Seller furnishes Buyer with advice or other assistance which concerns any Good supplied hereunder or any system or equipment in which any such Good may be installed and which is not required by the terms of this instrument or pursuant to any agreement resulting herefrom, the furnishing of such advice or assistance shall not subject Seller to any liability, whether in contract, warranty, tort (including negligence or patent infringement) or otherwise.
17. Safety and Indemnification. Buyer shall employ and maintain any and all safety guards, devices, warning signs, and features, and provide all warnings and instructions, which are required by law. Buyer in its use of the Good shall comply with all present and future statutes, laws, ordinances, regulations and/or guidelines of any applicable jurisdiction or agency, including without limitation, the Occupational Safety and Health Act of 1970, as amended. Buyer shall ensure that its personnel are, at all times, educated and trained in the proper use and/or operation of the Good(s) and that the Good(s) are used in accordance with any and all applicable manuals, documentation, and instructions. Buyer shall indemnify, defend and hold Seller harmless from and against all claims, damages, losses, judgments, fees, expenses and costs, including attorneys’ fees, as incurred, arising out of or resulting from Buyer’s failure to comply with this Section or in any way related to the matters contained in Sections 5-7, 10, 16, and 20(f) and (h) and hereof.
18. Force Majeure. Neither party shall be liable for failure or delay in the performance of any of its obligations under this Agreement, except obligations for the payment of money, if such delay or failure is caused by circumstances of force majeure, including but not limited to any act of God, embargo or other governmental act (including failure to act), regulation or request, fire, accident, strike, slow-down, war (declared or undeclared), riot, sabotage, epidemics, port congestion, delay in transportation, delayed delivery by suppliers, and inabilities due to causes beyond Seller’s reasonable control to timely obtain either necessary and proper labor, materials, components, facilities, energy, fuel, transportation, governmental authorizations or instructions, material or information required from the Buyer. The foregoing shall apply even though any of such causes exists at the time of the order or occurs after Seller’s performance of its obligations is delayed for other causes. Notwithstanding the foregoing, in the event that any delay or failure identified in this Section 15 continues for sixty (60) consecutive days, the party adversely affected by such delay may cancel this Agreement upon written notice to the other party. In the event of termination of this Agreement, Buyer shall be obligated to pay for all Items already provided. In the event Seller elects to so cancel the order, Seller shall be released from all liability for failure to deliver the Goods, including, but not limited to, any and all claims on behalf of the Buyer for lost profits, or for any other claim of any nature that the Buyer may have. Should any event of force majeure occur, Seller, at its option, may cancel the Buyer’s order with respect to any undelivered Goods or extend the delivery date for a period equal to the time lost because of delay. Notice of such election shall be given promptly to the Buyer. If shipping or progress of the work is delayed or interrupted by the Buyer, directly or indirectly, the Buyer shall pay Seller for all additional charges resulting therefrom. Claims for shortages or other errors must be made in writing to Seller within thirty (30) days after receipt of shipment, and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by the Buyer.
19. Technical and Other Confidential Information. Any sketches, models, samples, or designs submitted by Seller shall remain the property of Seller and shall be treated as confidential information unless the Seller has in writing indicated a contrary intent. No use or disclosure of such sketches, models, and samples, or any design or production process or techniques revealed thereby, shall be made without the express prior written consent of the Seller.
20. Buyer’s Property. Any property of the Buyer placed in Seller’s custody for performance of this contract is not covered by insurance, and no risk is assumed by Seller in the event of loss or damage to such property by fire, water, burglary, theft, civil disorder, or any accident beyond the reasonable control of the Seller. Seller shall be a gratuitous Bailee and shall only be responsible for losses due to its gross negligence
21. Separability. If any provision or portion thereof of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, such illegality or unenforceability shall not affect the validity and enforceability of any legal and enforceable provisions hereof. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH. The remaining provisions shall be construed as if such illegal and unenforceable provision or provisions had not been inserted herein, unless such illegality or unenforceability shall destroy the underlying business purpose of the Agreement. Buyer waives any governmental immunity, if applicable, to any and all causes of action.
22. Breach. In the event either party hereto should breach any of the material terms and conditions of this Agreement, the aggrieved party shall notify the other party. The offending party shall thereafter have ten (10) business days to correct the identified deficiency. In the event such deficiency is not rectified to the satisfaction of the aggrieved party, then the aggrieved party shall be entitled to declare the Agreement null, void and of no further force and effect. In the event of the termination hereof for any reason, Buyer shall be obligated to pay Seller for all Goods and Services already provided.
(a) Neither Seller nor Buyer shall directly or indirectly induce any employee or agent of the other party to leave the employ of the other, without the other party’s prior written consent.
(b) None of the provisions of this Agreement shall be deemed to have been waived by any act of or acquiescence on the part of Seller, its agents, subcontractors, or employees, but only by an instrument in writing signed by an authorized representative of Seller. No waiver by Seller of any provisions of this Agreement shall constitute a waiver of any other provision or of the same provision on another occasion.
(c) It is expressly declared that this Agreement and the relationship between the parties hereby established do not constitute a partnership, joint venture or agency arrangement between them.
(d) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Buyer may not assign its rights or obligations under this Agreement in any way without the prior written consent of Seller. Seller may use subcontractors as it deems necessary.
(e) This Agreement may be amended only in writing signed by each of the parties hereto. Terms on the front side hereof or under separate cover attached supersede any conflicting provision on this side hereof.
(f) If the Buyer attempts to use, copy, disclose, or transfer any portion of the confidential information in a manner contrary to the terms of this Agreement or in derogation of Seller’s rights, whether those rights are explicitly stated, determined by law, or otherwise, Seller shall have the right, in addition to any other legal remedies available, without the posting of a bond, to injunctive relief enjoining such acts, it being acknowledged by Buyer that all other remedies are inadequate and cumulative.
(g) All notices required to be given hereunder shall be in writing. Notices shall be considered delivered and effective upon receipt when sent by telecopy with proof of reception or by registered or certified mail postage pre-paid, return receipt requested, addressed to the parties as set forth above. Either party, upon written notice to the other, may change the address to which future notices shall be sent.
(h) Buyer shall not, directly or indirectly, export or transmit any Goods covered by this Agreement to any country to which such export or transmission is restricted by applicable regulations or statutes of the United States or any agency thereof, without the prior written consent of the U.S. Department of Commerce, Washington, D.C. 20230 and of any other required governmental agency. Buyer covenants that neither the Goods nor the Services are intended for any nuclear use or chemical or biological weapons production.
(i) Should any act or omission of Buyer cause delays and/or an increase or decrease in the cost of Seller’s performance of this Agreement, an equitable adjustment to the timetable and/or amounts due under this Agreement shall be made. Upon its awareness of such act or omission affecting the schedule and/or costs, Seller shall file a written claim with the Buyer.
(j) Buyer and Seller agree to designate in writing one person, acceptable to the other party, to represent such party with due authority in all dealings with the other party hereto.
(k) By shipping goods or services, or by receipt of goods or services, or by performing hereunder, Buyer agrees to the exclusive application of these Terms and Conditions. Reference to any form or communication of Buyer’s shall not be deemed to be an acceptance of any terms and conditions therein, and any different or additional terms or conditions in any proposal, acknowledgment form or any other document of Buyers