These Empire State Sales Terms and Conditions of Sale (hereafter "Terms") shall be the sole terms and conditions governing the sale of Empire State Sales products (hereafter "Products") to the party listed on the purchase order or other order documentation (hereafter "Buyer").
The acceptance by Empire State Sales (hereafter "Seller") of Buyer's order is expressly conditioned on Buyer's acceptance of these terms and conditions.
Seller hereby objects and rejects any and all additional or different terms proposed by Buyer, unless specifically accepted in writing by Seller.
The Terms described herein may be modified in writing with the signed approval of the President of Seller.
This quotation is based on the above PWB specifications manufactured in accordance with IPC-A-6012 Class 2 or specifications provided by the customer.
Quotations and prices are valid for 60 days. Lead times and delivery will be established with order confirmation.
All deliveries quoted are in working days, excluding weekends and legal holidays, FOB Boston, MA.
Terms of Payment
Terms are cash upon delivery, except where satisfactory open account credit is established, in which case terms of payment are net thirty (30) days from the date of invoice.
Seller reserves the right at any time to revoke any credit extended to the Buyer for any reason deemed good and sufficient by Seller.
Seller reserves the right to decline to make delivery of any order except for cash whenever, for any reason, Empire State Sales in its sole judgment and discretion, has any doubt or insecurity as to the purchaser's financial responsibility or ability or intention to make payment in full. Empire State Sales shall not, in such event, be liable for nonperformance of contract in whole or in part.
Seller will issue invoices on delivery in the case of all Products; and if deliveries are authorized in installments, each shipment shall be invoiced and paid when due without regard to other scheduled deliveries.
Overdue payments shall be subject to finance charges computed at a periodic rate (to the extent permitted by law) of 1.5% per month (18% per year).
Amounts owed by the Buyer with respect to which there is no dispute shall be paid without set-off for any amounts that the Buyer may claim are owed by Seller and regardless of any other controversies that may exist.
Buyer does hereby grant to Seller a security interest in the Products as security for the performance by Buyer of all its obligations hereunder.
Payment must be made in U.S. dollars.
Lead times and delivery will be established with order confirmation.
All deliveries quoted are in working days, excluding weekends and legal holidays, FOB Boston, MA.
Seller reserves the option to ship the quantity specified on Buyer's purchase order +/- ten percent (10%).
Seller reserves the right to invoice an additional charge for special packaging and/or shipping requirements made necessary by Buyer's specifications.
Unless specific instructions to the contrary are supplied by the Buyer, Seller will select the carrier and ship the Products to the Buyer's address indicated on Buyer's purchase order.
All Products will be scheduled for shipment in accordance with Seller' minimum order policy and applicable shipment sequence.
Seller reserves the right to make shipments in installments.
Seller reserves the right to make shipments when Product is available and shall invoice shipments as made.
Seller will confirm in writing, and amend as appropriate, the shipment schedule. Seller will not assume any liability in connection with the shipment or constitute any carrier as its agent.
Buyer shall be responsible for making all claims with carriers, insurers, warehouses and others for non-delivery, loss, damage or delay.
All claims for damages to the Products or shortages must be made within thirty (30) days of shipment.
Under no circumstances shall Seller be liable to Buyer for any delay either in shipment or in delivery.
Title and Risk of Loss
Except as otherwise stated herein, all Products will be shipped FCA (Incoterms 2000) (Seller's premises) or as otherwise designated by Seller in a notice to Buyer.
All Products shipped to Europe will be shipped DDP (Incoterms 2000) or DDU (Incoterms 2000) to Buyer's principal place of business unless otherwise agreed.
Ownership of, and risk of loss with respect to, the Products shall pass to Buyer upon delivery thereof by Seller to Buyer or to a carrier for shipment to Buyer, whichever is earlier, regardless of whether Seller will install or supervise the installment of the Products.
Products held or stored by Seller for the Buyer shall be at the sole risk of Buyer, and Buyer shall be liable for the expense to Seller of holding or storing Products at Buyer's request.
Cancellation, Rescheduling, Returns, and Modifications
Any request for order cancellation, rescheduling, return, or modification must be made in writing and such action must be approved in writing by an authorized agent of Seller.
Seller, at its option, may accept or reject any such request by Buyer.
Buyer shall not return any Products for any reason without the prior authorization of Seller and issuance of a Material Return Authorization (MRA) number.
Cancellation or suspension of any order by Buyer shall be subject to a five percent (5%) service charge and Buyer shall remain liable for all material and labor expenses incurred by Empire State Sales.
Intellectual Property Rights Warranty and Indemnity
Buyer expressly warrants to Seller that the design and specifications it provides and the resulting printed circuit board Seller manufactures does not interfere, violate, or infringe on any third party's patent, trade secret, proprietary design, or similar ownership right or interest.
Buyer agrees to indemnify and defend Seller against any claim that a Product that was custom manufactured to Buyer's design and specifications, infringes a valid and enforceable United States patent, United States copyright, United States trademark or other United States intellectual property right.
Empire State Sales warrants that the Buyer's specifications, designs, data inputs, and films will be converted and manufactured into a circuit board replicating electrical continuity and mechanical envelope and maintaining line widths and clearances per applicable design as specified by Buyer.
Empire State Sales will not warranty any changes or alterations requested verbally; all requests for changes or alterations must be by print revision or written request.
Upon completion of requested changes, check plots or film copies will be submitted for written approval.
Written approval will be considered a part of the customer's design input.
Any order pending written approval will be placed "on hold" until said approval is received, which may result in rescheduling of delivery.
EXCEPT AS PROVIDED HEREIN, SELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
SELLER SHALL HAVE NO WARRANTY OBLIGATION UNTIL IT RECEIVES PAYMENT IN FULL FOR THE PRODUCT UNDER WARRANTY.
LABELING ON PRODUCTS AND PACKAGING IS INTENDED SOLELY FOR COMPLIANCE WITH APPLICABLE LAW AND SELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, THAT ARISE FROM SUCH LABELING OTHER THAN AS REQUIRED BY APPLICABLE LAW.
IN NO EVENT SHALL SELLER BE RESPONSIBLE UNDER ITS WARRANTY FOR ANY DEFECT THAT IS CAUSED BY NEGLIGENCE OF BUYER OR A THIRD PARTY, STATIC DISCHARGE, MISUSE OF A PRODUCT OR MISTREATMENT OF A PRODUCT.
SELLER SHALL HAVE NO RESPONSIBILITY FOR ANY PRODUCT THAT HAS BEEN ALTERED OR MODIFIED IN ANY WAY.
SELLER SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY COMPONENTS OR LABOR ADDED TO ANY PRODUCT AFTER RECEIPT BY THE BUYER.
SELLER SHALL HAVE NO RESPONSIBILITY TO THE EXTENT ANY DEFECT OR FAILURE IS CAUSED BY NONCOMPATIBILITY OF THE PRODUCTS WITH OTHER COMPONENTS USED BY BUYER.
IT IS EXPRESSLY AGREED THAT ANY TECHNICAL INFORMATION OR SUGGESTIONS FURNISHED BY Empire State Sales WITH REGARD TO THE USE OF ITS PRODUCTS IS GIVEN AS A GRATUITY ONLY. SELLER ASSUMES NO OBLIGATION OR LIABILITY FOR THE INFORMATION OR RESULTS OBTAINED. ANY INFORMATION IS PROVIDED SOLELY AT THE BUYER'S RISK. THE BUYER ASSUMES SOLE RESPONSIBILITY FOR DETERMINING THE SUITABILITY OF THE PRODUCT FOR ITS INTENDED USE AND BUYER IS SOLELY RESPONSIBLE FOR THE DESIGN, DATA INPUT, SPECIFICATIONS, SUBSEQUENT MANUFACTURE, AND USE OF THE PRODUCT SOLD.
Limitations of Liability
SELLER'S EXPRESS WARRANTY TO BUYER AND THE INTELLECTUAL PROPERTY INDEMNITY DESCRIBED HEREIN CONSTITUTE SELLER' SOLE LIABILITY AND THE BUYER'S SOLE REMEDY WITH RESPECT TO THE PRODUCTS AND ARE IN LIEU OF ALL OTHER WARRANTIES, INDEMNITIES, LIABILITIES AND REMEDIES.
UNLESS OTHERWISE EXPRESSLY PROVIDED IN A WRITING SIGNED BY BOTH PARTIES, SELLER DOES NOT INDEMNIFY, NOR HOLD BUYER HARMLESS, AGAINST ANY LIABILITIES, LOSSES, DAMAGES AND EXPENSES (INCLUDING ATTORNEY'S FEES) RELATING TO ANY CLAIMS WHATSOEVER, INCLUDING WITHOUT LIMITATION, CLAIMS FOR PERSONAL INJURIES, DEATH OR PROPERTY DAMAGE RELATING TO THE PRODUCTS SOLD HEREUNDER.
IN NO EVENT SHALL SELLER BE LIABLE TO THE BUYER OR OTHER PERSON OR PARTY FOR SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND OR FORM, WHETHER ARISING FROM ANY CAUSE WHATSOEVER.
NO SUIT OR ACTION SHALL BE BROUGHT AGAINST SELLER MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS ACCRUED.
THE TOTAL LIABILITY OF SELLER TO BUYER AND/OR ANY THIRD PARTY FROM ANY LAWSUIT, CLAIM, WARRANTY OR INDEMNITY SHALL NOT EXCEED THE AGGREGATE AMOUNT ACTUALLY PAID BY BUYER TO SELLER FOR THE SPECIFIC PRODUCTS (AS IDENTIFIED BY PART NUMBER) SOLD UNDER THE ORDER SHIPMENT AT ISSUE THAT GAVE RISE TO THE LAWSUIT, CLAIM, WARRANTY OR INDEMNITY. THE EXISTENCE OF MULTIPLE CLAIMS RELATED TO THE SAME PRODUCT AT ISSUE SHALL NOT ENLARGE OR EXTEND THIS LIMIT.
IN THE EVENT OF A MANUFACTURING DEFECT, THE LIABILITY OF Empire State Sales SHALL BE LIMITED TO THE CORRECTION OF THE DEFECT AS SPECIFICALLY STATED HEREIN.
BUYER IS SOLELY RESPONSIBLE FOR, AND WILL HOLD Empire State Sales HARMLESS FROM, ANY LIABILITY ARISING FROM THE DESIGN, SPECIFICATIONS, DATA INPUT, AND FILMS SUBMITTED TO Empire State Sales FOR THE MANUFACTURE OF THE PRODUCT PURCHASED.
BUYER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS Empire State Sales FOR ANY CLAIMS, SUITS, DEMANDS, JUDGMENTS, OR AWARDS OF ANY NATURE WHATSOEVER DUE TO LIABILITY ARISING FROM WORK PERFORMED FOR THE BUYER; AND BUYER ASSUMES ALL RISK AND LIABILITY IN CONNECTION WITH THE USE OF PRODUCTS PROVIDED BY Empire State Sales.
ANY DISPUTE BETWEEN Empire State Sales AND BUYER MAY, AT THE SOLE DISCRETION OF Empire State Sales, BE SUBMITTED FOR ARBITRATION. PREVAILING PARTY SHALL BE PAID BY LOSING PARTY FOR ALL OF ITS REASONABLE ATTORNEY'S FEES AND COSTS OF ARBITRATION.
These terms and conditions are not assignable by Buyer and any attempt to assign any rights, duties or obligations arising hereunder shall be void. Seller may, as it deems necessary, subcontract any part of the work or services to be provided pursuant to these terms and conditions.
Except as provided below, these terms and conditions are made in, governed by and shall be construed in accordance with the laws of the Commonwealth of Massachusetts, without resort to the Commonwealth's conflict of laws provisions, and any applicable United States federal law.
The sole jurisdiction and venue for all actions related to the subject matter hereof shall be the courts located in the Commonwealth of Massachusetts.
Any action to enforce, arising out of, or relating in any way to, any of the provisions of this contract maybe brought and prosecuted in such court or courts located in the Commonwealth of Massachusetts as is provided by law.
The parties hereto consent to the jurisdiction of said courts located in the Commonwealth of Massachusetts and to service of process by registered mail, return receipt requested, or by other manner provided by the laws of the Commonwealth of Massachusetts.
Seller will maintain tooling necessary to manufacture product for no more than three years from the last date purchased, unless other arrangements are agreed to. Seller will not be responsible for any discarded tooling or the replacement thereof.
Seller shall not be liable for any loss or damage resulting from any delay in delivery or failure to give notice of delay when such delay is due to any cause or event beyond Seller's control, including, without limitation, acts of nature, pandemics, epidemics, unavailability of supplies or sources of energy, riots, wars, terrorist acts, sabotage, fires, strikes, labor difficulties, delays in transportation, delays in delivery or defaults by Seller's vendors, or acts or omissions of the Buyer.
In the event of delay due to any such cause, time for delivery shall be extended for a period of time equal to the duration of such delay and the Buyer shall not be entitled to refuse delivery or otherwise be relieved of any obligations as a result of the delay.
If, as a result of any such cause, any scheduled delivery is delayed for a period in excess of one hundred-twenty (120) days, Seller or Buyer shall have the right by written notice to the other to cancel the order for the Products subject to the delayed delivery without further liability of any kind.
Buyer shall inspect product within five (5) days from delivery or prior use, whichever comes first, and must give Seller written notice within ten (10) days after the date of delivery, of any perceived error or defect that does not match the customer's design, input data, or films within design tolerances.
Failure of the Buyer to inspect and give notice as required shall constitute a waiver of any defect or error.
If reported as required and an error or defect in manufacturing is determined to have been made, Seller guarantees it will repair or replace the circuit board if it is returned within sixty (60) days after shipment to the Buyer.
Returned products must have prior return authorization from Seller; and Seller reserves the right, at its sole option, to inspect and/or repair any product alleged to be defective at the customer's location.
Headings in the contract are for purposes of reference only and shall not limit or affect the meaning hereof.
Entire Agreement and Amendments
These terms and conditions constitute the entire agreement between the parties and supersede all previous communications, whether oral or written.