Terms & Conditions
of Sale
- Sale of Products/Scope. The sale of
products or services (collectively, "Products") from Compac
Corporation, its subsidiaries and divisions (collectively, "Seller")
to buyer, its subsidiaries and divisions, and any entity controlling,
controlled by, or under common control with it (collectively, "Buyer")
will be governed by these general terms and conditions of sale (the “Terms”). The
Terms are the only agreement binding on Seller and the Terms expressly
supercede and exclude the application of Buyer’s general terms
of purchase as well as any documents, quotations, or any other agreements,
whether in writing or oral, issued previously, now or in the future
by Buyer in relation to the Products, unless specifically agreed upon
in writing by Seller. No course of dealing or usage of trade
is applicable unless expressly incorporated in the Terms. Any
clerical error may be corrected by Seller. Buyer’s written
acknowledgment, issuance of purchase order, acceptance of an offer
of sale by Seller, delivery of Products or payment for the Products,
whichever occurs first, is acceptance of these Terms. Any proposal
for additional or different terms or any attempt by Buyer to vary in
any degree any of the Terms is rejected. All such proposals
are considered a material alteration of the Terms, and the additional
and different terms will not become a part of the contract between
the parties.
- Price/Payment. (a) The purchase price for the Products will be the
price for the Products in effect at the time of shipment, unless otherwise
agreed upon in writing by the parties. Seller may change prices
without notice. Prices contained in Seller issued quotations
or proposals expire 30 days from the date of quotation and are subject
to change or termination by notice during this period. (b) Buyer
will pay for all taxes, excises or other charges (except taxes on or
measured by net income) that Seller may be required to pay to any government
(foreign, national, state or local) with respect to the production,
sale or transportation of any Products, except where the law expressly
provides otherwise. Unless otherwise agreed to in writing by
Seller, Buyer will pay all freight, storage, handling, packaging, insurance
or similar charges. (c) Seller may require Buyer to pay a deposit
or provide an irrevocable letter of credit in favor of Seller in an
amount determined by Seller and from a bank approved by Seller payable
on presentation of commercial invoice, packing list or a bill or lading
indicating delivery to carrier. (d) Unless otherwise
noted on the face of these terms and conditions, invoices are payable
upon receipt in US funds, in no event greater than 30 days from date
of invoice, subject to credit approval. All amounts due to Seller
may be accelerated immediately upon Buyer’s failure to pay invoices
as required and shipments of Products may be suspended or cancelled.
Interest may be charged by Seller at the highest rate allowable by
law. Buyer agrees to indemnify and hold harmless Seller from
any and all legal fees and costs which may be required to collect any
overdue balances. (f) Seller may offset or recoup
any amounts owed by Seller to Buyer against any amounts owed by Buyer
to Seller. Buyer waives all right of offset and will pay all
amounts owed to Seller regardless of any claim asserted by Buyer. (g) Seller
may change payment terms at any time, in its sole discretion.
- Capacity. Seller may provide Buyer with estimates or forecasts
of its capacity for the manufacture or delivery of Products. Buyer
acknowledges that any estimates or forecasts are provided for estimation
of output only and, like any other forward looking projections, are
based on a number of economic and business factors, variables and assumptions,
some or all of which may change over time. Seller makes no representation,
warranty, guaranty or commitment, express or implied, regarding any
estimates or forecasts provided to Buyer, including the accuracy or
completeness of the estimates or forecasts.
- Allocation. In no event shall Seller be required to sell a greater
number of Products than it shall have available or allocated for such
purposes. If Seller is unable to supply the total demands for any of
the Products, Seller shall have the right to allocate its available
supply among its customers in such manner as Seller shall deem to be
fair and equitable. In not event shall Seller be obligated to purchase
Products from others in order to enable it to deliver Products to Buyer.
- Technical Information. (a) All specifications,
drawings, schematics, tests, designs, inventions, engineering notices,
financial information, technical data, samples, prototypes, models
and/or equipment (“Technical Information”) supplied by
Seller , directly or indirectly, will remain Seller’s ’ property
and will be held in confidence by Buyer. Technical Information
will not be reproduced, used or disclosed to others by Buyer without
Seller’s prior written consent, and will be returned to Seller
upon demand or upon completion by Seller of its obligations under the
Terms. Buyer will disclose Technical Information only to those
employees of Buyer having a need-to-know and bound by obligations of
confidentiality equivalent to those contained in this Section 5. (b) Any
information that Buyer discloses to Seller with respect to the design,
manufacture, sale, or use of Products is disclosed as part of the consideration
for these Terms, and Buyer will not assert any claim against Seller
by reason of Seller’s ' use of such information, which is not
limited in any manner. (c) Seller will own all right, title
and interest in any idea, invention, concept, discovery, work of authorship,
patent, copyright, trademark, trade secret, know-how or other intellectual
property developed by Buyer or Seller and related, directly or indirectly,
to the Products under these Terms, whether or not Seller charges for
the design, concept, invention or other intellectual property. (d) Buyer
will assist Seller in perfecting its right, title and interest and
will execute and deliver all documents reasonably requested by Seller
in order to perfect, register or enforce the same. Seller will
reimburse any associated costs incurred by Buyer in providing such
assistance. (e) Without obtaining the prior written consent of Seller,
Buyer will not advertise or publish the fact that Buyer has purchased
Products from Seller, or use any trademarks or trade names of Seller
in Buyer’s advertising or promotional materials. Buyer
may not resell the Products under any brand name other than Seller’s. In
the event of Buyer’s breach of this provision, Seller will have
the right, among all other remedies, to cancel the undelivered portion
of any Products and accelerate immediately all amounts due to Seller
prior to cancellation. (f) Buyer will indemnify Seller
from all expenses and damages (including legal fees) related to a breach
of this paragraph 5.
- Licenses. In the absence of a separate license agreement between
Buyer and Seller (whether shrink wrap, click through or otherwise),
the following apply: (a) Title to all licensed Products or portion
of Products (software, manuals, firmware, storage media or otherwise)
(collectively, “Licensed Products”) remains with Seller. Buyer
agrees not to reverse engineer, disassemble, decompile, or modify any
Licensed Product and Buyer irrevocably grants to Seller all right,
title and interest in any modifications to a Licensed Product. (b) Seller
grants Buyer a non-exclusive license for internal use and to make one
back-up copy for archival purposes only, provided that copyright notices
and other proprietary legends remain on such copy. (c) For Licensed
Products imbedded in Products, Seller grants Buyer a non-exclusive
right to use such Licensed Products in conjunction with the Product. (d) If
Buyer is in default of any of the terms and conditions of these Terms,
the rights granted in this paragraph 6 will terminate immediately without
notice of any kind. Upon termination, Buyer will return to Seller
all Licensed Products that are subject to return.
- Changes to Products. At its sole discretion, Seller may make
changes to the Products in accordance with Buyer’s instructions
or requirements or as Seller deems necessary, including changes to
the design, color, performance, dimensions and compositions of the
Products.
- Packaging and Delivery. (a) Buyer must not alter or distort,
in part or in full, the packaging, markings, numbers, or consistency
of the Products as they exist at the time of delivery, or sell the
Products in other than their original, unaltered packaging or use those
which may have been altered or distorted in any way. (b) Without
prejudice to the above, Buyer is responsible for ensuring that the
Products comply with the rules and standards governing the labeling
and marking of products in force in the country of import. (c) All
export and import permits and licenses and the payment of all export
and import duties and customs fees will be the responsibility of Seller,
if Seller is delivering the Products within the United States. All
export and import duties, fees, permits, licenses, etc. for Products
delivered outside of the United States will be the responsibility of
Buyer. (d) Products will be delivered F.O.B. Seller’s
facility. (e) Seller may elect to deliver the Product in installments. Each
installment will be considered a separate sale and Buyer will pay for
each installment in accordance with these Terms. Any Products
considered “back-ordered” will be considered an installment. (f) Risk
of loss passes to Buyer upon the provision of the Products to the carrier
regardless of the payment of shipping charges, notwithstanding any
provision of law to the contrary. (g) Seller will attempt
to fill and ship all orders to Buyer at the requested time of delivery,
subject to Seller’s choice of transport and further subject to
Seller’s present engineering and manufacturing capacity and scheduling. Seller
may revise delivery schedules at any time without liability and at
Buyer’s cost.
- Security Interest. In addition to any security interest granted
by the UCC, Buyer grants Seller a security interest in the Products
and documents related to Products and proceeds and goods from the Products
to secure all obligations of Buyer to Seller, whether or not arising
under the Terms. Seller may file a financing statement and at
Seller’s request, Buyer will sign financing statements if necessary,
evidencing the security interest. Buyer will provide a landlord's
waiver of any lien rights at the premises to which the Products will
be installed. In case of a default by Buyer, Seller, as the appointed
agent of Buyer, may peaceably enter the premises of the Buyer and others
and take other actions to repossess or render inoperable all Products
in which it has a security interest. Products are considered
strictly personal property no matter whether affixed to a permanent
foundation, building or structure, or for what purpose the Products
may be used. Buyer will maintain the Products in a segregated
area and not co-mingle any Products which are not fully paid. Buyer
will not sell, exchange, transfer, convey, mortgage, pledge, hypothecate,
or grant a security interest in unpaid Products and will advise Seller
immediately in writing of any damage to, change in location of, or
seizure of, any unpaid Products. Buyer will insure such Products
for damage or loss (including theft) in an amount not less than replacement
value.
- Acceptance of Products. All drawings, specifications, technical
documentation, samples, prototypes and Products are approved and/or
accepted by Buyer if Buyer does not provide Seller a written objection
and/or rejection within 10 days of receipt or other reasonable time
established in writing by Seller. Failure to provide written
objection and/or rejection will constitute an irrevocable acceptance
by the Buyer of the Products. Any written objection and/or rejection
must state with specificity all defects and non-conformities upon which
Buyer will rely to support its rejection of the Products. ALL
DEFECTS AND NON-CONFORMITIES WHICH ARE NOT SPECIFIED ARE WAIVED BY
BUYER. If Buyer rejects the Products and, if requested
by Seller, Buyer will return them to Seller at Buyer’s cost,
within three days, or Buyer has irrevocably accepted the Products. No
attempted revocation of acceptance will be effective, and Buyer will
be limited to any available remedies specifically provided in the Terms
for breach of warranty. Seller has a reasonable period of time
to cure any non-conformity.
- Responsibility for Safety/Compliance. It is Buyer’s or
other user’s responsibility to provide all proper devices, tools,
training, and means that may be necessary to protect effectively all
personnel from serious bodily injury that otherwise may result from
the method of particular installation, use, operation, setup, or service
of the Products. BUYER (OR USER) MUST INSTALL AND USE THE PRODUCTS
IN A SAFE AND LAWFUL MANNER IN COMPLIANCE WITH APPLICABLE HEALTH, SAFETY
AND ENVIRONMENTAL REGULATIONS AND LAWS AND GENERAL INDUSTRY STANDARDS
OF REASONABLE CARE. Buyer will not engage in any transaction
with respect to the Products, by way of resale, lease, shipment, use,
or otherwise, which violates any federal, state or local law or regulation
or regulations from the country in which the Products are imported.
- Express Warranty. Subject to the limitations in these Terms, Seller
warrants to Buyer only, and not Buyer’s customers or any other
third parties, that the Products will be free from significant operational
defects in material and workmanship for a period of 60 days from the
date of sale as shown on the invoice. Seller warrants that
the Products will not infringe any patent covering the Products themselves,
excluding portions specified, designed, or manufactured by Buyer (the
two foregoing sentences collectively, the “Warranty”). However,
Seller does not warrant against infringement by reason of the use of
such Products in combination with other articles or materials or in
any overall process or combination and Buyer assumes all responsibility
for determining whether relevant patents exist covering such use, together
with all risk and liability arising out of infringement of any such
patents. Seller’s liability is limited to replacing or
repairing the Products, at Seller’s discretion. A Warranty
replacement or repair of a claimed defective Product shall not have
the effect of extending this Warranty period. The Warranty is
valid only if Buyer (a) notifies Seller in writing within 30 days from
discovery of any alleged nonconformity; (b) the Products are returned
to Seller for inspection and testing; (c) Seller’s ’ inspection
discloses to its satisfaction that any alleged nonconformance are material
and have not been caused by misuse, neglect, wear and tear, improper
installation, unsuitable storage, repair, alteration, or accident;
and (d) the Products were installed, maintained and used in accordance
with Seller instructions, if any.
- Disclaimer of Warranties. Seller is not responsible for any
errors or omissions or for any loss or damage resulting from reliance
on catalogues, brochures, price lists or other information provided
to Buyer from Seller , including descriptions, shipping specifications,
technical advice, illustrations, representations as to quality or capabilities
(whether oral or in writing), or any other information unless otherwise
set forth in these Terms. THE WARRANTIES IN THIS AGREEMENT ARE
IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED (OTHER THAN THE
WARRANTY OF TITLE AS PROVIDED BY THE UNIFORM COMMERCIAL CODE IN EFFECT
IN MICHIGAN ), INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, SAID WARRANTIES BEING EXPRESSLY
DISCLAIMED. UNDER NO CIRCUMSTANCES SHALL SELLER BE HELD
RESPONSIBLE FOR THE PERFORMANCE OF PRODUCTS TO STANDARDS SPECIFIC TO
THE COUNTRY OF IMPORT UNLESS SUCH COUNTRY IS SPECIFICALLY NOTED ON
A WRITTEN DOCUMENT FROM BUYER TO SELLER AND SUCH DOCUMENT WAS ACCEPTED
IN WRITING BY SELLER.
- Limitation of Remedies/Time for Action. THE REMEDIES SET FORTH
IN THESE TERMS WILL BE EXCLUSIVE. SELLER WILL NOT BE LIABLE FOR
ANY CLAIMS OF ANY KIND GREATER IN AMOUNT THAN THE PURCHASE PRICE OF
THE PRODUCTS FROM WHICH THE CLAIMS ARE MADE. IN NO EVENT WILL
SELLER BE LIABLE FOR COSTS ASSOCIATED WITH THE PURCHASE OF SUBSTITUTE
GOODS BY THE BUYER OR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL
OR PUNITIVE DAMAGES. Without limiting the generality of the foregoing,
Buyer assumes all risk and liability for the results obtained by the
use of any Products delivered hereunder in combination with other articles
or materials or in the practice of any process, whether in terms of
operating costs, general effectiveness, success or failure, and regardless
of any oral or written statements made by Seller, by way of technical
advice or otherwise, with respect to the use of such Products. Any
proceeding by Buyer for breach of the Terms cannot be filed or maintained
unless it is commenced within one year after the cause has accrued,
Buyer has provided written notice to Seller as provided in these Terms
and Buyer has paid in full all amounts owing to Seller under these
Terms.
- Indemnification. Buyer shall defend and indemnify Seller from
all losses, damages, costs or expenses of any kind (including legal
fees) incurred as a result of, or arising from: (a) Buyer’s
breach of these Terms (including, the use or disclosure of Seller’s’ Technical
Information in violation of Section 5); (b) patent infringement based
on Buyer’s use of the Products in an overall process or as an
element in an overall combination; (d) Buyer’s alteration, processing,
modification, assembly or reassembly of the Products, supplies or materials
used in connection with the Products, or parts manufactured with the
Products, (e) negligence of Buyer.
- Termination. These Terms are subject to Seller’s’ revocation
or cancellation at any time, without liability, provided that Seller
completes all current orders in process at the time of cancellation. Buyer
may cancel its order for Products prior to its completion by immediate
payment to Seller of Seller’s’ cost of manufacture and
liquidated damages (including labor, engineering, materials, Tooling,
equipment time, overhead) computed using Seller’s’ standard
internal costing procedures, plus 15% of the sales price for the Products. Cost
of manufacture includes all materials or services that Seller has ordered
and that cannot be canceled and all costs incurred in canceling such
orders. Seller may retain without cost all materials and partially
completed Products on cancelled orders.
- Applicable Law and Jurisdiction. These Terms will be governed
by the laws of the State of Michigan without regard to rules pertaining
to conflicts of law. The federal, state and local courts located in
the State of Michigan will have exclusive jurisdiction for any disputes
relating to these Terms. The United Nations Convention on Contracts
for the International Sale of Goods will not apply to these Terms. If
any provision is or becomes invalid or unenforceable under any law,
the remaining provisions will be in full force and effect as written.
- Dispute Resolution. The parties will attempt to resolve any
dispute involving the interpretation, performance or no-performance,
or enforceability of these Terms by prompt good faith negotiations
and, if such negotiations fail, will consider alternative dispute resolution
procedures before resorting to litigation.
- Miscellaneous Provisions.
A. Assignment. Buyer will
not assign, in whole or in part, these Terms or delegate the performance
of its duties without the written consent of Seller. Any assignment
or delegation without the previous written consent of Seller, at the
option of Seller, will cancel any outstanding purchase orders. Any
consent by Seller to an assignment will not waive Seller’s’ right
to recoupment from Buyer and/or its assigns for any claim arising out
of these Terms. If Seller agrees to the assignment of the Terms,
in whole or in part, Buyer will remain solely liable to Seller for
the adherence of the assignee to these Terms.
B. Buyer’s Property. Buyer
shall insure all materials, fixtures, tooling and other property delivered
to Seller against all risks and waives subrogation in the event of
loss of or damage to such property or personal injury arising from
the use or storage of such property.
C. Force Majeure. Any delay or
failure of either party to perform its obligations will be excused
if caused by an extraordinary event or occurrence beyond the control
of the nonperforming party and without the nonperforming party's fault
or negligence, such as acts of God, fires, floods, windstorms, explosions,
riots, natural disasters, wars, terrorist attacks, sabotage, strikes,
shortages of labor or material, vendor failures, transportation embargoes
or acts of any governmental or governmental agency. In the event
of such a delay, delivery will be deferred for a period of time equal
to the time lost due to the delay. Seller will notify Buyer in
writing within a reasonable time of any such event. In no event
will Seller be liable for late deliveries.
D. Modification and Waiver. No modification or waiver of the
Terms will be binding upon Seller unless approved in writing by one of
Seller’s’ authorized representatives, or will be affected
by the delivery of Product or the acknowledgment or acceptance of purchase
order forms, invoices, shipping papers or other documents containing
other or different terms whether or not signed by an authorized representative
of Seller.
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