Terms and Conditions of Sales
1. GOVERNING TERMS.
These Terms and Conditions of Sale (“Terms”) shall apply to the sale by Vacuum Products Corp (VPC). or its affiliated company (“_____”) of the products and/or services (“Products”) described in the Quotation, Sales Order, Acknowledgment, Purchase Order, web page or other contract documentation to which these Terms are attached, incorporated by reference and made an integral part (the “Contract Documents”). Except as expressly agreed by authorized representatives of both parties in writing, no other terms and conditions, including any terms and conditions attached to Buyer’s request for quotation, acknowledgment, purchase order or other contract documentation, shall apply to VPC’s sale of the Products. VPC's shipment of any Product or performance of any purchase order or contract is expressly conditioned on Buyer's acceptance of these Terms. As used herein, “Contract” refers to the applicable order pursuant to which VPC is selling the Products to Buyer.
2. PRICE AND PAYMENT.
Except as otherwise specified in the Contract Documents, VPC's prices exclude and Buyer is responsible for all sales, use, excise, value-added or other taxes and duties. Buyer’s late payment shall constitute a fundamental breach of the Contract, shall result in a service charge against Buyer of the lesser of 2% per month of the Contract amount or the maximum amount permitted by law, and shall entitle VPC to cancel or delay performance under the Contract. VPC shall retain a purchase money security interest or similar lien or right of repossession in all Products shipped to Buyer under the Contract until paid in full. Buyer shall execute documents and make filings or recordings as requested by VPC for the perfection or other protection of such security interest.
3. DELIVERY.
Unless otherwise specified in the Contract Documents, Buyer shall take title and risk of loss of Products sold hereunder at point of delivery for Products shipped by VPC to a non-U.S. destination and at the point of shipment in all other cases. Training, if included in Products, must be taken by Buyer within one year following shipment of system. With respect to items returned to VPC for repair, replacement, or credit toward the purchase of new or refurbished Products, whether or not such returned items are under warranty, Buyer shall: (1) prepay the cost of shipping; (2) be responsible for loss or damage in transit; and (3) completely remove and identify on VPC’s Request for Return form any toxic or hazardous materials to which they may have been exposed, and indemnify and hold VPC harmless against any claims resulting from a failure to do so.
4. INFRINGEMENT INDEMNITY.
VPC shall defend and indemnify Buyer from all third party claims alleging that VPC’s design or manufacture of any Product infringes any third party patent or other intellectual property right, except to the extent such claims arise from or relate to (a) any Product or component thereof designed by Buyer, (b) modification of any Product without VPC’s express written consent, (c) use of any Product in combination with any product, process, application, or material or system not designed or manufactured by VPC, or (d) products manufactured by Buyer using any Product.
5. SOFTWARE LICENSE.
Title to all software provided as separate modules or embedded in the Products ("Software") shall remain the property of VPC or VPC's licensors. VPC grants to Buyer a non-exclusive, limited license to use the Software together with the Products. Buyer shall not decompile, disassemble or otherwise reverse engineer the Software, and may create derivative works only to the extent permitted by VPC. Buyer shall not sublicense, assign, copy, distribute or disclose any portion of the Software to a third party without the express written consent of VPC. Buyer may transfer or sell its license rights to use the Software only together with the Products to a transferee which has accepted this Article 6 in writing.
6. WARRANTY.
VPC warrants new Products to be free from defects in material and workmanship and in substantial conformance with VPC's published specifications for a period beginning upon delivery and ending one (1) year thereafter. VPC warrants Software and refurbished Products to be free from defects in material and workmanship and in substantial conformance with VPC’s published specifications for a period beginning upon delivery and ending ninety (90) days thereafter, subject to any applicable license agreement. VPC warrants services sold under these Terms to be performed in a good and workmanlike manner for a period beginning upon performance and ending ninety (90) days thereafter. VPC does not warrant the operation of any Software to be uninterrupted or error-free. The foregoing warranty periods shall be deemed extended to the extent required by any mandatory, non-waivable provision of applicable law. The foregoing warranties are void in the event of Product abuse, alteration, misuse, improper operation or maintenance, use in an unsuitable physical environment, or use with inadequate facilities or utilities, and these warranties do not cover products, components, or services warranted by another party. Buyer’s sole and exclusive remedy for any defective or non- conforming Product after its warranty period begins shall be repair, replacement with either a new or refurbished Product, or credit, at VPC’s sole option, and such remedy shall be available only during the applicable warranty period. Repaired or replaced Products shall be subject to the original warranty period, which shall not be extended due to such repair or replacement, except to the extent required by any mandatory, non-waivable provision of applicable law. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. DAMAGES.
In no event shall VPC or Buyer be liable to the other or their respective affiliates for incidental, consequential, indirect, punitive, or special loss or damages of any kind, including but not limited to lost revenues, lost profits, loss of goodwill or lost production, however caused, whether based on contract, tort (including negligence) or any other legal theory. VPC’s total liability in damages or otherwise to Buyer and its affiliates shall not exceed payments received by VPC for the unit of Product furnished or to be furnished resulting in the loss or damage claimed.
8. FORCE MAJEURE.
Neither VPC, nor Buyer shall be liable to the another for failure to perform any obligation under the Contract to the extent such failure to perform is due to labor unrest, riot, war, fire, accident, weather or other natural disasters, lack of energy supplies, supplier delays, compliance with law, failure to obtain all necessary licenses, permits or approvals after reasonable efforts, or any unforeseen circumstances or other causes beyond such party’s reasonable control.
9. SOLE TERMS.
These Terms and the Contract Documents of which they are a part set forth the entire agreement between VPC and Buyer with respect to their subject matter and supersede all previous written or oral agreements and understandings between VPC and Buyer. These Terms and the Contract Documents may not be amended nor may compliance with any provision herein or therein be waived, except by a written document duly and validly executed by both VPC and Buyer, or in the case of a waiver, the party waiving compliance. Any part of these Terms held to be void, invalid or unenforceable shall be treated as severable, leaving valid the remaining Terms.
10. GOVERNING LAW; DISPUTES.
If this Contract concerns the sale of Products to be delivered to U.S. destinations, it shall be governed by the laws of the State of California, U.S.A. (excluding choice of law rules and the provisions of the Convention for the International Sale of Goods (CISG)). Any dispute or claim arising out, relating to or in connection with such a Contract shall be resolved exclusively by final, binding arbitration pursuant to the American Arbitration Association, provided that, VPC may seek injunctive or other relief in any court of law in order to prevent any unauthorized copying, disclosure, use, retention or distribution of its intellectual property. If this Contract concerns the sale of Products to be delivered to non-U.S. destinations, it shall be governed by CISG and (for issues not addressed by CISG) by local law applied pursuant to choice of law rules or mutual agreement of the parties and any disputes or claims may be resolved in any court of competent jurisdiction.