Deliveries may be suspended by either party in the event of Act of God, war, riot, fire, explosion, accident, flood, sabotage, inability to obtain fuel, power, raw materials, labor, containers, or manufacturing or transportation facilities, governmental laws, regulations, orders or action, breakage or failure of manufacturing machinery or apparatus, or any other event beyond the reasonable control of Seller.
Should Buyer’s financial responsibility become unsatisfactory to Seller, advance payments or adequate security may be required by Seller for all deliveries hereunder, including Product theretofore delivered. Seller reserves the absolute right among other remedies, to terminate this Contract or suspend further performance hereunder in the event Buyer fails to fully comply with the terms and conditions of this Contract (including failure to pay for any one shipment when same becomes due), or if at any time Buyer becomes bankrupt or insolvent, or if Buyer fails to promptly provide the cash payments or adequate security as required above. In the event of such a termination, Seller shall be entitled, upon demand, to indemnification or all costs and expenses already incurred or commitments made by Seller in its performance hereunder, plus reasonable amounts for overhead and profit. In the event Buyer fails to pay Seller as due, and Seller must seek the help of an attorney to collect such sums as are due, Buyer agrees to pay the costs of collection including a reasonable attorneys’ fee.
Seller agrees that Buyer or its designated representative, if Buyer wishes, may inspect the Product hereunder upon completion and again after packing provided that Buyer may not delay packing or shipment. The type of inspection shall be mutually agreed upon in advance by Buyer and Seller.
The shipment of Product hereunder will be made in accordance with Buyer’s detailed shipping instructions, which Buyer agrees to provide to Seller reasonably in advance of the estimated shipping date(s) set forth on the face hereof or, in the alternative, as has been mutually agreed to by the parties. Seller shall not be bound to tender delivery of any Product for which Buyer has not provided such shipping instructions, if the shipment is postponed or delayed by Buyer for any reason. Buyer agrees to reimburse Seller for any and all storage costs or other additional expenses resulting therefrom.
Subject to the limitations of Paragraph 6 and except as otherwise provided herein, Seller warrants title to the Product sold hereunder that said
Product is not subject to any encumbrance and that it shall conform to Seller’s specifications therefor. Seller further warrants that the Product will be free from defects due to materials or workmanship until the expiration of the earlier of twelve (6) months from the date of initial receipt or eighteen (12) months from the date of shipment if, within thirty (30) days after Buyer’s discovery of any such defects. Buyer notifies Seller thereof in writing. Seller shall, at its option, promptly replace that portion of the Product found by Seller to be defective. Failure by Buyer to give such written notice within the applicable time period specified above shall be deemed an absolute and unconditional waiver of Buyer’s claim for such defects.
Buyer’s exclusive remedy under this Contract shall be for damages and Seller’s total liability for any and all losses or damages resulting from any cause whatsoever, including, without limitation, defects in or defective performance of the Product, or negligence, shall in no event exceed the purchase price of the Product in respect to which a claim is made, or at the election of Seller, the replacement of such Product, F.O.B. Seller’s factory. Seller shall not be liable for, and Buyer assumes responsibility for, all personal injury and property damage resulting from the possession, use, handling, operation or resale of the Product by Buyer, in no event shall Seller be liable for incidental or consequential damages, whether Buyer’s claim is in contract, negligence or otherwise. Any Product replacement required of Seller under this Contract may be undertaken after return of a portion or all of the Product to Seller’s shop at Buyer’s expense, should Seller deem it necessary.
Seller warrants that any Product sold, hereunder, expect as is made specifically for Buyer according to Buyer’s specifications, does not infringe any valid U.S. patent in existence as of the date of this Contract. This warranty is given upon condition that Buyer promptly notify Seller of any claim or suit involving Buyer in which such infringement is alleged, and, if Seller is affected, that Buyer permit Seller to control completely the defense or compromise of any such allegation of infringement. Seller does not warrant that the use of any Product sold hereunder, or that the combination or the use of any combination of Product sold hereunder with other products or materials, will not infringe a patent. Seller reserves the right to terminate Seller’s obligations under this Paragraph 7 at any time with respect to any undelivered Product, it being agreed that in the event of such termination Buyer may, without penalty, thereafter refuse acceptance of any undelivered Product.
Upon cancellation by Buyer, for any reason whatsoever, of the order for any or all of the Product covered by this Contract, Buyer agrees to reimburse Seller, upon demands, for all costs and expenses already incurred or commitments made by Seller in connection with the manufacturing, processing, and handling of said Product, plus reasonable amounts for overhead and profit.
Any VAT, CST, Excise, property or similar tax or governmental charge arising out of or relating to this Contract, which is currently effective, increased hereafter, or which hereafter becomes effective is for the account of Buyer. Seller shall have the right at any time to separately bill the Buyer for any such tax or charge which the Seller is called upon to pay. No inspection or other fees, permits or licenses are to be reported as chargeable to or are to be paid by Seller
The date of bill of lading shall be accepted as a conclusive date of shipment. A ten (10) day grace period in shipping shall be allowed. Partial shipment and/or transshipment shall be permitted. Seller shall not be responsible for any delay in shipment due to Buyer’s failure to provide a letter of credit pursuant to provision (2) of the Contract, nor shall Seller be responsible for any damages incurred by Buyer due to either delay in arrival of the ship and/or airplane designated by Buyer or delay in actual transport and delivery of the Product beyond the prearranged date of shipment.
Buyer shall establish in favor of Seller an irrevocable and confirmed letter of credit, without recourse, negotiable on sight drafts through a prime bank satisfactory to Seller within fifteen (15) days after the date of the Contract. The L/C shall remain in effect at least fifteen (15) days after the last day of the month of shipment and shall authorize immediatepayment to Seller in an amount equal to the invoiced amount of the Product (the “Invoiced Amount”). The Invoiced Amount shall include the purchase price of the Product and all sums advanced by Seller for Buyer’s account which are reimbursable to Seller pursuant to the Contract. Should Buyer fail to provide such L/C in accordance with the Contract, Seller may defer the shipment of the Product, resell the Product for Buyer’s account, hold the Product for Buyer’s account, and/or terminate the Contract at any time.
Insurance and Freight
In the case of Product sold on CIF or C&I terms, Seller shall obtain insurance on the Product at 100% of the Invoiced Amount. Insurance added to F.P.A. (Free from Particular Average), including risk of war, shall be obtained only at the timely request of Buyer, and Buyer shall bear the cost for such additional insurance, which shall be added to the Invoiced Amount. Buyer shall bear all additional cost resulting from unforeseen increases in freight, insurance or other expenses related to the Product occurring after the date of the Contract. Such additional cost shall be added to the Invoiced Amount.
In Quantity set forth in the Contract is subject to variation of ten (10)percent more or less.
Packing and Marking
Packing and marking shall be performed at Seller’s option. If special instructions are necessary with respect to the Product, Buyer shall provide Seller with such instructions in a timely manner.
Liability of buyer’s principal
If Buyer has executed the Contract acting as an agent on behalf of a Principal, whether or not such a fact is disclosed to Seller, Buyer and thePrincipal shall be jointly and severally liable for the performance of the obligations of Buyer under the Contract.
In the event any governmental jurisdiction requires Seller to withhold tax from the payments due to Buyer, such sums may be withheld only if Buyer furnishes to Seller satisfactory evidence that such taxes have been paid to said governmental jurisdiction.
THIS CONTRACT WILL BE GOVERNED BY THE PROVISIONS OF “INCOTERMS 2000” UNLESS OTHERWISE STATED