The Terms and Conditions of Sale outlined herein shall apply to the sale of products, parts, and/or services relating thereto (hereinafter referred to as Products) by Concepts NREC, LLC with its principal facility in Vermont, (hereinafter referred to as Seller) to the purchaser (hereinafter referred to as Purchaser). No additional or contrary terms shall be binding upon Seller unless agreed to in writing.
Seller hereby objects to and rejects any other terms or conditions appearing on, incorporated by reference in or attached to a purchase order. Purchaser’s acceptance of Products called for in said purchase order shall constitute its acceptance of the following terms and conditions.
Seller will comply with applicable laws and regulations of the United States of America in effect on the date of Seller’s proposal as they may apply to the manufacture of the Products. Compliance with any local government laws or regulations relating to the location, use, or operation of the Products, or its use in conjunction with other Products, shall be the sole responsibility of Purchaser.
2. TITLE AND RISK OF LOSS
Title and risk of loss or damage to the Products shall pass to Purchaser upon tender of delivery FCA Origin, unless otherwise agreed upon in writing by the parties, except that a security interest in the Products shall remain in Seller, regardless of mode of attachment to realty or other property until full payment has been made therefore. Purchaser agrees upon request to do all things and acts necessary to perfect and maintain said security interest and shall protect Seller’s interest by adequately insuring the Products against loss or damage from any cause wherein Seller shall be named as an additional insured.
Neither party shall assign or transfer this contract without the prior written consent of the other party. Seller, however, shall be permitted to assign or transfer, without the prior written consent of Purchaser, Seller’s right to receive all or any portion of the payment due from Purchaser under this contract
4. DELIVERY AND DELAYS
Delivery dates shall be interpreted as estimated, and in no event shall dates be construed as falling within the meaning of “time is of the essence”.
Seller shall not be liable for any loss or delay due to war, riots, fire, flood, strikes, or other labor difficulty, acts of civil or military authority including governmental laws, order, priorities or regulations, acts of Purchaser, government regulation including but not limited to import/export restrictions, embargo, car shortage, damage or delay in transportation, inability to obtain necessary labor or materials from usual sources, faulty forgings or castings, or other causes beyond the reasonable control of Seller. In the event of delay in performance due to any such cause, the date of delivery or time for completion will be adjusted to reflect the actual length of time lost by reason of such delay. Purchaser’s receipt of Products shall constitute a waiver of any claims for delay.
All prices are FCA Origin, per Incoterms 2010, unless otherwise stated in Seller’s proposal. Seller shall arrange for transportation of the ordered Products by an appropriate means of transportation. Purchaser agrees to pay all transportation charges incurred after the Products is delivered to the carrier.
The prices provided herein do not include any present or future federal, state, or local property, license, privilege, sales, use, excise, gross receipts of other like taxes or assessments which may be applicable to, measured by, imposed upon or resulting from this transaction or any services performed in connection therewith. Any and all taxes that may arise out of an order subject to these terms shall be paid by the Purchaser.
7. SET OFFS
Neither Purchaser nor any affiliated Seller or assignee shall have the right to claim compensation or to set off against any amounts which become payable to Seller under this contract or otherwise.
8.1 General Warranty
Purchaser shall be obligated to promptly submit any warranty claim pursuant to this Section 8, in writing to Seller within said period, whereupon Seller shall, at its option, correct such defect by suitable repair to such Products, or furnish a replacement part DAP Destination, per Incoterms 2010, provided Purchaser has stored, installed, maintained, and operated such Products, and documented the same in writing and photos and proper operating data, in accordance with good industry practices and has complied with specific recommendations of Seller.
Products furnished by Seller, but manufactured by others, shall carry whatever warranty the manufacturers have conveyed to Seller and which can be passed on to Purchaser. Seller shall not be liable for any repairs, replacements, or adjustments to the Products or any costs of labor performed by Purchaser or others without Seller’s prior written approval.
The effect of corrosion, erosion, and normal wear and tear are specifically excluded from any warranty. Performance warranties are limited to those specifically stated within Seller’s proposal. Unless responsibility for meeting such performance warranties are limited to specified shop or field tests, Seller’s obligation shall be to correct in the manner and for the period of time as applicable pursuant to Sections 8.2 – 8.5.
SELLER MAKES NO OTHER WARRANTY OR REPRESENTATION OF ANY KIND WHATSOEVER, EXPRESSED OR IMPLIED, EXCEPT THAT OF TITLE, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED.
Resolution of warranty claims in the manner and for the period of time as applicable pursuant to Sections 8.2 – 8.5, shall constitute fulfillment of all liabilities of Seller for such claims, whether based on contract, warranty, negligence, indemnity, strict liability, or otherwise with respect to or arising out of such Products.
Purchaser shall not operate Products which are considered to be defective, without first notifying Seller in writing of its intention to do so. Any such use of Products will be at Purchaser’s sole risk and liability.
Where material is supplied and/or specified by Purchaser, no material warranty is offered and Supplier’s only responsibility is to conduct operations in a manner consistent with Supplier’s applicable industry certified Quality Management Systems and to adhere to Purchaser specified quality control provisions as submitted with the order.
8.2 Specific Warranty – Products Designed and Manufactured by Seller
Seller warrants that Products designed and newly manufactured by it and delivered hereunder as “commercial” Products will be free of defects in material and workmanship for a period of twelve (12) months from the date of placing the Products in operation or eighteen (18) months from the date of shipment, whichever shall first occur. Seller warrants that Products designed and newly manufactured by it and delivered hereunder as “prototype” Products will be free of defects in workmanship only for a period of six (6) months from the date of shipment. All other warranties are expressly disclaimed.
8.3 Specific Warranty – Refurbished or Repaired by Seller
Seller warrants that Products which have been refurbished or repaired by it at Seller’s facilities and delivered hereunder will be free of defects in workmanship for a period of six (6) months from the date of date of shipment. All other warranties are expressly disclaimed.
8.4 Specific Warranty – Products Manufactured to Purchaser Supplied Specifications
Seller warrants that Products manufactured by it according to Purchaser supplied design(s) and/or specification(s) and delivered hereunder will be free of defects in workmanship for a period of six (6) months from the date of date of shipment. Where Seller has supplied component(s) meeting the criteria of Section 8.2 or Section 8.3, the applicable warranty for such component(s) will apply. All other warranties are expressly disclaimed.
8.5 Specific Warranty – Off-site Repair, Installation, and Commissioning
Seller warrants that repair, installation, commissioning, and/or other services performed by Seller at Purchaser’s or third party facilities will be performed in a professional manner consistent with Seller’s best practices and applicable industry certified Quality Management Systems. Where Seller has supplied component(s) meeting the criteria of Section 8.2 or Section 8.3, the applicable warranty for such component(s) will apply. All other warranties are expressly disclaimed.
9. LIMITATION OF LIABILITY
THE SOLE AND TOTAL LIABILITY OF EITHER PARTY WITH RESPECT TO ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS CONTRACT OR THE PRODUCTS AND SERVICES FURNISHED HEREUNDER, IN CONNECTION WITH THE PERFORMANCE OR BREACH THEREOF, OR FROM THE MANUFACTURE, SALE, DELIVERY, INSTALLATION, REPAIR, OR TECHNICAL DIRECTION COVERED BY OR FURNISHED UNDER THIS CONTRACT, WHETHER BASED ON CONTRACT, WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OF THE UNIT OF PRODUCT(S) UPON WHICH SUCH LIABILITY IS BASED.
SELLER AND ITS SUPPLIERS SHALL IN NO EVENT BE LIABLE TO PURCHASER, ANY SUCCESSORS IN INTEREST OR ANY BENEFICIARY OR ASSIGNEE OF THIS CONTRACT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF THIS CONTRACT OR ANY BREACH THEREOF, OR ANY DEFECT IN, OR FAILURE OF, OR MALFUNCTION OF THE PRODUCTS HEREUNDER, WHETHER BASED UPON LOSS OR USE, LOST PROFITS OR REVENUE, INTEREST, LOST GOODWILL, WORK STOPPAGE, IMPAIRMENT OF OTHER GOODS, LOSS BY REASON OF SHUTDOWN OR NON-OPERATION, INCREASED EXPENSES OF OPERATION, COST OF PURCHASE OF REPLACEMENT POWER, OR CLAIMS OF PURCHASER OR CUSTOMERS OF PURCHASER FOR SERVICE INTERRUPTION, WHETHER OR NOT SUCH LOSS OR DAMAGE IS BASED ON CONTRACT, WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY, OR OTHERWISE.
In the event purchaser cancels all or any part of this contract within thirty (30) days of the ship date, Purchaser shall nevertheless pay the quoted price for the Products that is the subject of the contract. In the event Purchaser cancels all or part of this contract in excess of thirty (30) days prior to the ship date, Purchaser shall nevertheless pay to Seller an amount equal to all expenses incurred in anticipation of the subject order, including reasonable profit.
In the event of a contract default, both parties shall negotiate in good faith to resume work as quickly as possible. Work shall be resumed once all issues have been resolved and an amended contract is put in place. It is understood that resumption is on a “time available basis”, as other commitments may have been made in the interim. Seller, at its discretion may accelerate any payments remaining under this agreement and/or in the order placed by Purchaser which is in default.
In the event of a work stoppage called by or caused by Purchaser (including but not limited to late payment), the contract may be declared by Seller to be in default.
A Purchaser default that cannot be remedied shall be considered Purchaser cancellation pursuant to Section 10 above.
12. WARNING: PROPER USE
The responsibility for safe and effective conditions of use belongs to the end user of the product or part. All users of Products should be knowledgeable in the proper use of such Products. Even when used properly, normal wear and tear of operation can cause degradation of the Products. Such degradation can lead to substandard performance or damage. If the Product being supplied by Seller is to be incorporated in a larger assembly, this warning should be transmitted to the end user of that larger assembly.
13. NUCLEAR LIABILITY
In the event that the Products sold hereunder are to be used in a nuclear facility, Purchaser shall, prior to such use, arrange for insurance or governmental indemnity protecting Seller against liability, and hereby releases and agrees to indemnify Seller and its suppliers for any nuclear damage, including loss of use, in any manner arising out of a nuclear incident, whether alleged to be due, in whole or in part, to the negligence or otherwise of Seller or its suppliers.
14. GENERAL INDEMNIFICATION
Purchaser agrees to defend, protect, indemnify, and hold Seller harmless from and against all claims of any kind, whether based in contract, in tort (including negligence or strict liability), or otherwise for any losses, expenses, damages, and liabilities, direct, indirect, special, or consequential which may arise out of Purchaser’s use, distribution, or sale of Products, except those caused by the sole negligence of Seller as determined by a court of competent jurisdiction.
With respect to the performance of any work at Purchaser’s or third party facilities, Seller’s personnel shall be properly covered with insurance in the areas of Worker’s Compensation, Public Liability, and Automobile Insurance where the use of a vehicle is required. A certificate confirming this insurance coverage is obtainable upon request. To the extent any loss and/or damage is recoverable by insurance proceeds under Purchaser’s insurance policies, Purchaser waives its and its insurers’ rights to recover for such loss and/or damage against Seller.
16. WORK SITE ACCESS
With respect to the performance of any work at Purchaser’s or third party facilities, Purchaser shall make all necessary arrangements for access to the work site by necessary Seller personnel. Purchaser shall also be responsible for site sanitation, cooling, heating or other work site preparation work, as advised by Seller. Purchaser shall hold Seller harmless from all contractual or other losses incurred due to any delays attributable to access problems or Purchaser’s failure to properly prepare the work site.
Purchaser shall assure that the work site complies with all governmental health and safety regulations and meets the standards of the relevant industries in work site safety. In performing its work, Seller shall comply with all governmental health and safety regulations and meet the work site safety standards of the relevant industries.
17. GOVERNING LAW
Any action arising out of this this agreement, these terms, the Products, or work completed pursuant to this agreement, shall be brought in a court of general jurisdiction located in the State of Vermont. The parties irrevocably submit to the jurisdiction of courts in Vermont.
This contract shall be interpreted and applied in accordance with the laws of Vermont without regard to its choice of law provisions.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this agreement.