Terms of Sale
|
These Terms of Sale (the "Agreement") contained herein constitute the entire agreement between Protokraft, LLC., ("Protokraft") and you ("Customer"). Protokraft will not be bound by any terms of Customer' s order. No form of acceptance except Protokraft' s written acknowledgement sent to Customer, or Protokraft' s commencement of performance, shall constitute valid acceptance of Customer's order. Any such acceptance is expressly conditioned on assent to the terms hereof and the exclusion of all other terms. Customer shall be deemed to have assented to the terms hereof, whether or not previously received, upon accepting delivery of any Product (as defined herein) shipped by Protokraft. If tender of these terms is deemed an offer, acceptance is expressly limited to the terms hereof.
"Products" shall mean any products offered for sale currently and identified on (a) any of Protokraft' s written proposals or quotations, (b) current applicable price lists, or (c) any of Protokraft' s invoices. Alterations to any Product which Protokraft deems necessary to comply with specifications, changed safety standards or governmental regulations, to make a Product non-infringing with respect to any intellectual property or other proprietary interest, or to otherwise improve a Product may be made at any time by Protokraft without prior notice to, or consent of, Customer and such altered Product shall be deemed fully conforming.
Customer shall purchase Products by issuing a written purchase order signed by an authorized representative, indicating specific Products, quantity, price, total purchase price, shipping instructions, requested delivery dates, bill-to and ship-to addresses, tax exempt certifications if applicable, and any other special instructions. Any contingencies contained on such order are not binding upon Protokraft. All orders are subject to acceptance by Protokraft, who will accept or reject orders according to Protokraft' s then current processes. Every purchase order issued by Customer to Protokraft following the effective date of this agreement shall be governed by and be deemed to include the provisions of this agreement.
All prices are (a) firm for thirty (30) days from the date of the written quotation, (b) FOB Protokraft factory [Incoterms, 1990] (shipping costs and risk of loss from the FOB point of shipment are the responsibility of Customer) and (c) exclusive of Taxes (as defined herein) and all handling or other charges including without limitation insurance, brokerage fees, transportation or special packaging ("Charges"). For Products shipped freight prepaid or insured, Protokraft will bill Customer a freight/insurance charge. All sales are final. Title to Products shall pass from Protokraft to Customer upon delivery to the shipping carrier at the FOB point. Any tax or other charge which Protokraft is liable to collect on behalf of any governmental authority ("Taxes") as a result of the sale, use or delivery of Products, including, without limitation, duties, value added and withholding taxes, is the responsibility of Customer, and if paid by Protokraft shall be charged to Customer as a separate line item on the invoice, to the extent possible.
Upon credit approval by Protokraft, payment terms shall be cash upon delivery or, at the option of Protokraft, net thirty (30) days from the date of the shipment. Protokraft reserves the right to require alternative payment terms, including, without limitation, letter of credit of payment in advance. All payments must be in United States dollars. If at any time Customer is delinquent in the payment of any invoice or is otherwise in breach of this agreement, Protokraft may, at its discretion, withhold shipment (including partial shipments) of any order or may, at its option, require Customer to pre -pay for further shipments. All payments not received when due shall be subject to an additional charge of one and one half percent (1.5%) per month (annual rate 19.56%) of the unpaid amount or the maximum rate permitted by law, whichever is less, until the date of payment, as well as Protokraft' s costs of collection, including attorney fees and costs. Customer grants Protokraft a security interest in Products purchased under this Agreement to secure payment for those Products purchased. If requested by Protokraft, Customer agrees to execute financing statements to perfect this security interest. There is no set-off right for Customer.
Protokraft will schedule shipments based on Customer' s requests and Protokraft' s estimated shipping capability, provided Customer' s order requests shipment within twelve (12) months from the date of the order. Protokraft may make partial shipments unless Customer' s order specifically objects. Performance and shipping dates specified or communicated by Protokraft to Customer are best and approximate dates only as based upon information, conditions, and raw material availability at the time of the order. Delivery shall be deemed made upon transfer of possession to the carrier at the FOB point. All claims for shortage of Products ordered or for incorrect charges must be presented to Protokraft within ten (10) days after receipt by Customer of the particular shipment of Products. Customer shall be responsible for all Charges. Unless given written instruction, Protokraft shall select the carrier. Protokraft shall not be liable for damages or penalty for delay in delivery or for failure to give notice of any delay, and the carrier shall not be deemed to be an agent of Protokraft. Protokraft shall not be liable for any delay or failure to deliver where, in Protokraft' s sole discretion, such performance is rendered commercially impracticable, or where such failure to perform is on account of an act of God, act of governmental authorities, fire, earthquake or other natural disasters, labor disputes of any nature, shortage of supplies or raw materials, accident, insurrection, or other causes beyond the reasonable control or without the fault of Protokraft or which would cause Protokraft to incur unreasonable expense to avoid. Requests for proof of delivery must be received in writing within 30 days after receipt of the invoice for Products. The failure to give Protokraft such written notice within the 30 day period shall be considered acceptance of the invoice and a waiver by Customer of all claims for shortages. Customer may not cancel or terminate any order, in whole or in part, without the prior written consent of Protokraft, which consent, if given, shall be upon terms that will compensate Protokraft for any loss or damage there-from, including but not limited to, the price of Products shipped to, manufactured for, or held separately for, Customer, and loss of profits, incurred costs, including cost of raw materials, tooling, and labor, and a reasonable allocation of general and administrative expenses relating to Products.
Notwithstanding any provision to the contrary, Protokraft' s sole and exclusive obligations to Customer for any Product made by Protokraft and sold hereunder are to repair returned Product or provide a replacement Product, at Protokraft' s sole option, for any Product which has been returned to Protokraft under the RMA procedure (as defined below) and which in the reasonable opinion of Protokraft is determined to be defective in workmanship, material, or not in compliance with the mutually agreed written applicable specification and has in fact failed under normal use on or before one (1) year from the date of original shipment of Product. All Products which are experimental Products, prototypes, or Products used in field trials or qualification testing, are not warranted. All third parties' Products (including software) sold by Protokraft carry only the original manufacturer's warranty applicable to Customer. Protokraft will only accept for repair, replacement or credit under warranty Products made by third parties if expressly authorized to do so by the relevant third party. Any Product repaired or replaced under warranty is only warranted for the period of time remaining in the original warranty for the Product. Protokraft reserves the right, at its sole option, to issue a credit note for any defective Product as an alternative to repair or replacement. The warranty provided herein shall extend to any Product which has proved defective and has failed through normal use, but excludes and does not cover any Product or parts thereof which has been accidentally damaged, disassembled, modified, misused, used in applications which exceed the Product specifications or ratings or which are inconsistent with its design intent, neglected, improperly installed or otherwise abused or is used in hazardous activities. Customer must claim under the warranty in writing not later than thirty (30) calendar days after the claimed defect is discovered. Customer must make all claims under this warranty and no claim will be accepted from any third party. Protokraft reserves the right to change its credit terms and/or suspend performance under any order when, in the opinion of Protokraft, Customer's financial condition or record of payment so warrants. This warranty does not extend to Products to the extent such Products have 1) been subjected to misuse, neglect, or abuse not caused by Protokraft, 2) been repaired or altered by anyone other than Protokraft without Protokraft' s approval, 3) been installed improperly by personnel not certified or approved by Protokraft, 4) been used in violation of the approved written instructions or specifications furnished to Customer, or 5) been subjected to improper temperature, humidity or other environmental conditions, and such action is the cause of the damage or malfunction.
Protokraft will only accept Products returned under the Protokraft Return Materials Authorization ("RMA") process and shipped pursuant to the RMA Shipping and Packaging Instructions. Failure to comply with RMA Shipping and Packaging Instructions shall render the Product warranty null and void immediately. Customer shall obtain an RMA number from Protokraft prior to returning any Product and return the Product prepaid and insured to Protokraft to the FOB point. One RMA number per part number will be designated by Protokraft. Any part number not covered by the applicable RMA number will be returned to customer immediately at Customer' s sole expense. RMA numbers are issued only after Customer has completed an RMA Authorization Request form. Each RMA must be accompanied by any and all test printouts, photos, photomicrographs, and any other results or characterization conducted by Customer which Customer contends set forth defects in workmanship, material, or in non-compliance with the mutually agreed written applicable specification and has in fact failed under normal use on or before one (1) year from the date of original shipment of Product. Any Product which has been returned to Protokraft but which is found to meet the applicable specification for the Product and not defective in workmanship and material, shall be subject to Protokraft' s regular and customary labor, materials, and administrative charges which shall be charged to Customer. Where any Product is returned without an itemized statement of claimed defects, Protokraft will not evaluate the Product but will return it to Customer at Customer' s expense. The warranty of a repaired Product shall be the balance of the standard warranty from the date of repair. Protokraft reserves the right to test a representative sample of returned Products only and to make its return authorization for the entire requested quantity based on said sample. Alternatively, and at Protokraft' s sole and absolute discretion, returned Product may be replaced in part or in its entirety with new Products that meet the original Product specifications.
EXCEPT FOR THE WARRANTIES STATED HEREIN FOR THE CUSTOMER, NO WARRANTY, CONDITION OR REPRESENTATION, EXPRESS, IMPLIED, ORAL OR STATUTORY, IS PROVIDED TO CUSTOMER OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY, CONDITION, OR REPRESENTATION: (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE; OR (B) THAT THE PRODUCTS WILL BE FREE FROM INFRINGEMENT OR VIOLATION OF ANY RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS, OF THIRD PARTIES. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY HEREIN FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER' S SOLE AND EXCLUSIVE REMEDIES HEREUNDER AND THE ONLY LIABILITY OF PROTOKRAFT IS EXPRESSLY LIMITED TO THE TERMS OF THIS AGREEMENT. PROTOKRAFT SHALL NOT BE LIABLE TO CUSTOMER, OR ANY THIRD PARTY, FOR ANY OTHER SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR INDIRECT COSTS OR DAMAGES, INCLUDING WITHOUT LIMITATION, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, LOSS OF DATA, DAMAGES RESULTING FROM USE OR MALFUNCTION OF THE GOODS, PRODUCTION, PROFIT, OR REVENUES, OR COST OF REPLACEMENT GOODS, ARISING FROM ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH COSTS OF DAMAGES. FOR PURPOSES OF THIS PROVISION, PROTOKRAFT INCLUDES PROTOKRAFT' S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUB-CONTRACTORS AND SUPPLIERS. IN NO EVENT SHALL THE TOTAL COLLECTIVE CUMULATIVE LIABILITY OF PROTOKRAFT, ITS EMPLOYEES, OFFICERS, AGENTS, AND DIRECTORS EXCEED THE AMOUNT PAID TO PROTOKRAFT FOR PRODUCTS FROM WHICH SUCH LIABILITY AROSE DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE MOST RECENT CLAIM.
Customer shall obtain all licenses, permits and approvals required by any government and shall comply with all applicable laws, rules, policies and procedures of the applicable government and other competent authorities. Customer will indemnify and hold Protokraft harmless for any violation or alleged violation by Customer of such laws, rules, policies or procedures. Customer shall not transmit, export, or re-export, directly or indirectly, separately or as part of any system, the Product or any technical data (including processes and services) received from Protokraft, without first obtaining any and all licenses required by the applicable government, including without limitation, the United States Government and/or any other applicable competent authority. If Customer resells or otherwise disposes of any Product or technical data purchased hereunder, it will comply with any export restrictions applicable to such transfer. Protokraft shall have no liability for delayed delivery or non-delivery resulting from denial, revocation, suspension or governmental delay in issuance, of any necessary export license or authority.
All rights, title and interest in and to any inventions, discoveries, improvements, methods, ideas, computer and other apparatus programs and related documentation, other works of authorship fixed in any tangible medium of expression, mask works, or other forms of intellectual property, whether or not subject to statutory protection, which are made, created, developed, written, conceived, or first reduced to practice by Protokraft solely, jointly or on its behalf, in the course of, arising out of, or as a result of work performed under an order, and any related tooling set-up, fitting-up and preparation charges whether or not invoiced, shall belong to and be the sole and exclusive property of Protokraft. Customer agrees not to reverse engineer all or any portion of any Product nor allow or assist others to do so. Customer agrees not to remove, alter, erase, deface or cover over any markings on the Product or its packaging.
The validity, interpretation and performance of this Agreement shall be governed by and construed under the applicable laws of the State of Tennessee and the United States of America, as if performed wholly within the state and without giving effect to the principles of conflict of laws. The parties specifically disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods. Protokraft shall not be liable for any delay or failure in performance whatsoever in any instance where, in Protokraft' s sole judgment, such performance is rendered commercially impracticable, or where such failure to perform is due to acts of God, earthquakes, or other natural disasters, shortage of supplies, acts of governmental authorities, transportation difficulties, labor disputes of any nature, riots, war, fire, explosion, epidemics, or other occurrences beyond Protokraft' s reasonable control or due to unforeseen circumstances. Waiver by Protokraft of any provision herein must be in writing and shall not be deemed to be a waiver of such provision in the future or of any other provision. Customer shall hold confidential and shall not use, disclose or permit others to use any confidential information identified as such in writing or orally by Protokraft or information which Customer knows or ought to reasonably know is confidential, proprietary or trade secret information of Protokraft, including, without limitation, trade secrets embodied in Products. Neither this Agreement not any rights under this Agreement, other than monies due or to become due, shall be assigned or otherwise transferred by Customer (by operation of law or otherwise) without the prior written consent of Protokraft. No attempt to assign or transfer in violation of this provision will be binding upon Protokraft. This Agreement shall bind and inure to the benefit of the successors and permitted assigns of the parties. In the event that any of the terms of this Agreement, apart from payment, become or are declared unenforceable by any court of competent jurisdiction, such terms shall be null and void and shall be deemed deleted from this Agreement. All remaining terms of this Agreement shall remain in full force and effect. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of any other party or bind the other party in any respect whatsoever. Protokraft neither assumes nor authorizes any third party, person or entity to assume or accept any liability or obligation, or to make any commitment for Protokraft with regard to Protokraft services or the Products. This Agreement constitutes the entire agreement between the parties hereto concerning the subject matter of this Agreement, apart from existing non-disclosure agreements, and there are no understandings, agreements, representations, conditions, warranties, or other terms, express or implied, which are not specified herein. This Agreement may only be modified by a written document executed by authorized representatives of Protokraft and Customer. In return or exchange for the credit extended by Protokraft to Customer on account, Customer gives Protokraft a continuing security interest in rights, title, and interest in Products presently and hereafter acquired on account, and on such other collateral, whether now existing or hereafter arising or created, whether fixed or contingent, whether now owned or hereafter acquired, and wherever located. Customer shall execute and deliver, in a form acceptable to Protokraft, in Protokraft' s sole opinion and judgment, all documents which are necessary to perfect and maintain the security interest in the collateral, including, without limitation, assignments, financing statements, and certificates of title or registration. Non-payment by Customer of any outstanding invoices shall be deemed an extension of credit by Protokraft for purposes of this paragraph only.
If litigation is commenced by either party to enforce any contract including these terms and conditions, then the prevailing party shall be entitled to recover its reasonable costs, attorneys' fees, and experts' fees, both at trial and on appeal. |
