TERMS AND CONDITIONS OF SALE
(including security provisions)
1. Terms: Unless otherwise stated, the
terms of payment will be 50% of price at acceptance of quotation, 35% of
price at delivery of models, drawings or service, and net thirty (30) days
after customer acceptance of remaining 15% or price. Unless otherwise
stated, all prices are F.O.B. Emerge Technologies, Inc.'s office, Forest
Grove, Oregon.
2. Acceptance: Seller's Quotation may be accepted only
in writing by the Buyer or its authorized representative, and once having
been accepted by Buyer, shall be binding upon the parties only unless and
until approved by the Seller or its duly authorized officer at Vancouver,
Washington. Once so accepted and approved, the contract formed thereby is
intended by the parties as a final expression of their agreement with
respect to the subject matter hereof, and as a complete and exclusive
statement of its terms. No course of prior dealing between the parties and
no usage of trade shall be relevant or admissible to supplement, explain
or vary any of the terms hereof. Acceptance of, or acquiescence in, a
course of performance rendered under this or any prior agreement shall not
be relevant or admissible in determining the meaning of this agreement
even though the accepting or acquiescing party has knowledge of the nature
of performance and an opportunity to make objection. No understandings,
representations or agreements have been made or relied upon in the making
of this agreement other than those specifically set forth herein.
Acceptance by Buyer of this Quotation shall be deemed to constitute an
agreement upon the part of the Buyer to the terms and conditions hereof,
and supersedes all previous agreements. If the Buyer, in lieu of accepting
this Quotation in the manner contemplated by this Paragraph 3, shall
forward to the Seller a purchase order for the goods covered hereby, such
action shall be deemed to be the Buyer's acceptance of this Quotation upon
the terms and conditions herein expressed, subject to the approval by the
Seller from one or more of its authorized officers, not withstanding the
fact that the Buyer's purchase order may contain terms different from or
additional to those contained herein; in such event, such different or
additional terms shall be null and void, but such nullity shall not affect
the formation of the contract between Buyer and Seller on the terms herein
set forth. This Quotation is not a firm offer and may be revoked or
withdrawn at any time prior to Buyer's acceptance. This Quotation is for
acceptance by Buyer within thirty (30) days and is subject to change or
withdrawal at any time prior thereto without notice.
3. Adjustment to
Purchase Price: In the event of any unanticipated increase in the cost of
labor or of materials between the date of Seller's approval of Buyer's
order and the delivery of the goods covered hereby, the Seller, upon
notice to Buyer, may make an appropriate increase in the total purchase
price (which increase may include a reasonable allocation to Seller's
profit and overhead), which increase shall be payable by Buyer upon
Seller's written demand therefor. Upon request of Buyer, Seller shall
furnish or make available to Buyer for its inspection, any invoices,
records, ledgers or other materials that would substantiate the increase
in price under the terms of this paragraph.
4. Packaging and Risk of
Loss: Unless otherwise stated, prices cover bulk packaging only. Risk of
loss is upon Buyer at all times after the goods are delivered to a carrier
at Seller's office in Vancouver, Washington.
5. Taxes: Buyer agrees to
pay any and all sales taxes, tariffs, surtaxes, excise taxes, and use
taxes which either Buyer or Seller may become legally liable for as a
result of this transaction.
6. Patents: Buyer assumes all liability for
infringement of patents, copyrights or trademarks, and agrees to defend,
indemnify, and hold harmless Seller against any claims arising from such
infringement. If any claim is made against Seller for patent, copyright or
trademark infringement, Buyer agrees to defend Seller and to indemnify and
hold harmless Seller from any and all claims arising from any alleged
infringement of patent, copyright, or trademark, including the defense of
claims which are baseless or which have no merit.
7. Fires, Casualties:
Seller is not responsible for loss of or damage to molds, tooling, or
other equipment by fire or other casualties. It is the responsibility of
the Buyer to carry all forms of insurance on his tooling and equipment
that Buyer deems necessary.
8. Delays: Seller shall not be responsible
for any delay in performance or delay in delivery caused by circumstances
beyond its control, including, but not limited to an act of God, fires,
floods, wars, government actions, accidents, labor troubles, labor
shortages, unavailability of materials, unavailability of equipment, or
unavailability of transportation.
9. Disclaimer of Warranty: THERE ARE
NO EXPRESS WARRANTIES INVOLVED IN THIS TRANSACTION OTHER THAN THOSE
WARRANTIES STATED HEREIN. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE
DESCRIPTION APPEARING ON THE FACE HEREOF. THE FOREGOING IS EXPRESSLY IN
LIEU OF ALL OTHER WARRANTIES WHATSOEVER, EXPRESSED, IMPLIED IN STATUTE,
INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. DEFECTIVE ITEMS MUST BE HELD FOR
SELLER'S INSPECTION AND RETURNED TO THE ORIGINAL POINT OF DELIVERY.
10.
Claims for Defective Parts. Any claims for breach of warranty (if any)
must be reported in writing to Seller, in sufficient detail to fully
apprise Seller of the claimed defect within thirty (30) days after
delivery of the parts at the destination specified by Buyer. IT IS AGREED
THAT THE SELLER'S LIABILITY, IN CONTRACT, TORT OR OTHERWISE, FOR DAMAGES
ARISING FROM ANY DEFECTIVE PART IS LIMITED TO THE PRICE OF THE DEFECTIVE
PART, AND THAT SELLER WILL NOT BE LIABLE IN ANY EVENT FOR LOSS OF USE OR
CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY TYPE WHATSOEVER. No parts which
are claimed to be defective shall be returned to Seller without first
notifying Seller in writing, and receiving shipping instructions from
Seller. In all events, the transportation charges on returned parts will
be paid by Buyer. THERE SHALL BE NO REVOCATION OF ACCEPTANCE, WHICH RIGHT
TO REVOKE ACCEPTANCE, BUYER HEREBY EXPRESSLY WAIVES. BUYER MAY REJECT THE
GOODS COVERED HEREBY ONLY FOR DEFECTS SUBSTANTIALLY IMPAIRING THEIR VALUE
AND FOR NO OTHER REASON. BUYER'S EXCLUSIVE REMEDIES FOR LESSER DEFECTS
SHALL BE FOR BREACH OF AN EXPRESS WARRANTY, AND THEN ONLY TO THE EXTENT
APPLICABLE TO ANY EXPRESS WARRANTY CONTAINED HEREIN.
11. Damages: In
the event Buyer wrongfully rejects, revokes or unduly delays acceptance of
the goods covered hereby, Seller, at its option, shall have the right to
recover as damages either (i) the purchase price of the goods, whereupon
the goods in such conditions as they may then exist shall become property
of Buyer, or (ii) the profit (including reasonable overhead) realized by
the Seller upon full performance. In either event, Seller may recover all
incidental damages and reasonable costs, including, in the event Seller
elects (i) above all reasonable charges for storage, handling and
preservation of the goods until the same are claimed by Buyer. Seller's
remedies set forth in this paragraph are supplemental to, and not in lieu
of, any and all remedies otherwise available to Seller at law, in equity,
or hereunder.
12. Claims for Shortages: All claims for shortages must
be made in writing thirty (30) days after delivery of the parts at the
destination specified by Buyer.
13. Raw Materials: Where the raw
materials out of which the parts to be supplied hereunder are specified,
Seller warrants that all products supplied hereunder will be manufactured
from raw materials which are so designated or described by the
manufacturer or supplier of the raw material. However, Seller shall not in
any event be liable for, and Buyer assumes the entire risk of all losses
caused by, any deficiencies, limitations, modifications or variations in
the specified raw materials, which raw materials are designated or
described by the manufacturer or supplier thereof in a manner which
conforms to the specifications.
14. Indemnity: Buyer assumes all
liability (including but not limited to liability for injury to person or
property, economic loss or business interruption) for claims arising from
the sale or use of the parts or products covered by this agreement. Buyer
further agrees to defend, indemnify, and hold harmless Emerge
Technologies, Inc., its officers, directors, employees and agents from any
and all claims, demands, actions, or suits arising from the sale or use of
any part or product covered by this agreement except for losses caused
solely by the gross negligence of Emerge Technologies, Inc.
15.
Limitation Period: If either party to this agreement desires to bring an
action against the other party for breach of this agreement, including any
action by Buyer against the Seller for the alleged breach of any warranty,
the time within which the action must be commenced shall be one year after
the accrual of the cause of action as defined by UCC 62A.2-725.
16.
Jurisdiction: This contract shall be construed, in all respects, in
accordance with the laws of the State of Washington. Any controversy or
claim or dispute arising out of or related to this contract shall be
litigated only in a court of the State of Oregon for Washington County, at
Seller's option.
17. Legal Costs: if any legal proceeding is brought
for the enforcement of any term, provision, covenant or agreement set
forth herein, or because of a dispute or an alleged breach, default or
misrepresentation in any way connected herewith, or with any provision
hereof, the successful or prevailing party shall be entitled to recover
from the losing party the reasonable attorney's fees and other costs
incurred in that action or proceeding or in any appellate proceeding
relating thereto, such amount to be set by the court(s) before which the
matter is tried, heard or decided.
