General Terms and Conditions of Sale
1. Scope and Validity
These general terms and conditions of sale (these “Terms”) govern the sale and delivery of all products (the “Products”), and all transactions incidental thereto, by or on behalf of PDS HMI Solutions Corp. (“Seller”) to any of its customers (“Buyer”). No other terms or conditions shall be of any force or effect unless otherwise specifically agreed upon by Seller in a writing duly executed by an authorized officer of Seller. Any additional or different terms or conditions contained in Buyer’s Order, response to Seller’s Order confirmation, or any other form or document supplied by Buyer are expressly rejected and are of no effect. These Terms may not be modified, amended, waived, superseded, or rescinded except by written agreement signed by an authorized officer of Seller. Delivery of the Products does not constitute acceptance of any of Buyer’s terms and conditions.
2. Offers; Acceptance
Unless otherwise specified by Seller in writing, all offers made by Seller are valid only for ninety (90) days from the date of the offer and may be revoked by Seller after that period.
Buyer shall issue orders for the purchase of Products via e-mail, fax, mail or as determined by Seller (each, an “Order”). By issuing an Order, Buyer makes an offer to purchase the Products under these Terms and the terms set forth on that Order.
Seller may refuse an Order for any or no reason and without liability to Buyer. No Order is binding on Seller until Seller accepts it in writing (a “Confirmed Order”). Each Confirmed Order is a separate agreement. These Terms together with the Confirmed Orders are the “Agreement”.
3. Prices
The price of the Products shall be set forth in Seller’s price list, as amended by Seller from time to time. Prices become binding on Seller only when confirmed in writing in a Confirmed Order. If unforeseeable increases in Seller’s material or labor costs occur after confirmation, Seller may increase the agreed prices with written notice to Buyer.
4. Payment
Unless otherwise agreed, promptly and no later than five (5) days after Seller’s invoice and written order confirmation, Buyer shall pay 50% of the cost of tooling, molds, jigs, fixtures and other specialized tools made specifically for Buyer (“Tooling”) and the first set of sample Products (“Samples”). Seller is not required to start production before receipt of that payment. Buyer shall pay the remaining 50% within five (5) days of the invoice and no later than five (5) days before the agreed delivery date.
Unless otherwise agreed in writing, Buyer shall pay the purchase price for Products and all other amounts due under a Confirmed Order within 30 days after Seller’s invoice, without discount, deduction or offset. Seller is not required to ship Products before full payment.
Loss, damage, destruction, Force Majeure Events and other events beyond Buyer’s control do not release Buyer from payment obligations. Payment may be made by check, wire transfer, credit card or another method stated on Seller’s invoice. Buyer is responsible for bank and payment fees. If payment is received within ten days of the invoice date, Buyer may deduct a 2% discount.
Time is of the essence. Late amounts bear interest at the lesser of 1% per month (12% annually) and the highest rate permitted by law. Seller may suspend delivery, place Products in storage at Buyer’s expense, cancel performance and recover collection costs, including legal fees.
5. Buyer; Financial Condition
If Buyer’s financial condition jeopardizes its ability to perform, Seller may require cash payment, immediate payment of the entire balance or additional security. Seller may refuse delivery if Buyer fails to pay as required.
6. Tooling
Unless Seller agrees to sell Tooling to Buyer, Seller retains ownership and, to the extent reasonable, will not dispose of it for a reasonable period not exceeding two years. Buyer shall use Samples only for evaluation or as authorized by Seller.
Tooling and Samples sold to Buyer are provided on an “as is” and “as available” basis with all faults and without representations or warranties, including implied warranties of merchantability, fitness for a particular purpose, title, validity and non-infringement. Buyer assumes full responsibility for their use. References to “Product” or “Products” include Tooling and Samples when Seller has agreed to sell them unless stated otherwise.
7. Taxes & Freight Charges
In addition to the purchase price, Buyer shall pay or reimburse all governmental taxes, excises, tariffs, duties, levies and other charges, including shipping and handling, payable in connection with the manufacture, sale, shipment or import of the Products or their components into the United States.
8. Delivery Terms
Unless otherwise stated in a Confirmed Order, deliveries are FOB Seller’s warehouse, freight collect, by transportation reasonably selected by Seller. Title and risk of loss pass to Buyer on delivery.
Delivery dates are estimates and are not binding. Seller is not liable for delivery delays, and no delay relieves Buyer of its obligation to accept delivery and pay amounts due. Products are deemed delivered when made available to Buyer. If Buyer rejects, revokes acceptance or fails to pay, Seller may extend, withhold or cancel delivery and Confirmed Orders, with Buyer responsible for resulting costs and losses.
9. Conditions for Seller’s Performance; Force Majeure Event
Seller’s performance depends on delivery of necessary supplies, energy, materials, utilities and labor by its vendors and suppliers. Seller may change the terms of a Confirmed Order as necessary because of vendor performance, delay, failure to perform or a Force Majeure Event, without liability for resulting delay.
A “Force Majeure Event” means any act of God, power, communications or transportation disruption, war, terrorism, epidemics, pandemics, governmental measures, malware, hacker attacks, fire, extraordinary weather, nuclear or chemical accident, earthquake, labor dispute, strike, lockout, shortage or inability to obtain labor, energy, materials, supplies or transportation, or any other cause beyond Seller’s or its affiliates’ control.
10. Limited Warranty
Products substantially conform to Seller’s standard specifications and are free from defects in material and workmanship for one year from delivery, provided Buyer has fulfilled its inspection and notification obligations under Section 12. For an alleged breach, Buyer must, at its expense and with Seller’s prior written approval, return the Product. If Seller confirms a breach, Seller may repair, replace or refund an amount it deems adequate. That remedy is Seller’s sole liability and Buyer’s sole remedy.
The warranty is void for improper installation, use, storage, handling, operation, maintenance, unauthorized alteration or repair, inadequate training, excessive use, improper resources or accessories, integration with other products, acts or omissions after delivery, unfavorable environmental conditions, extreme or incompatible temperatures or materials, defects in materials applied by Buyer, misuse or modification of Tooling, use of materials not supplied by Seller, Force Majeure Events and ordinary wear and tear.
Except for the Limited Warranty, Seller disclaims all express and implied warranties, including merchantability, fitness for a particular purpose and non-infringement. Warranty claims may not be made after the Limited Warranty Period. The warranty period does not restart for repaired or replaced Products.
11. Risk of Use of the Products
Buyer is solely liable for use of the Products or derivatives and for any recall, loss, claim, damage or liability arising from use, handling or storage after delivery. If Seller arranges transportation for Buyer, Seller is not liable for transportation damage.
12. Inspection and Notification
Immediately upon receipt, Buyer shall inspect the Products and notify Seller in writing of shortages, defects or noncompliance. If Buyer fails to notify Seller within 15 days, the Products are conclusively deemed conforming and irrevocably accepted, and Buyer waives all related claims.
13. Limitation of Liability
Seller is not liable for consequential, indirect, incidental, special, exemplary, punitive or enhanced damages, lost profits or revenues, or diminution in value, whether foreseeable or not and regardless of legal theory. Seller’s aggregate liability shall not exceed the amount paid for the actual Product giving rise to the claim. These limitations apply to the maximum extent permitted by law, and Buyer may have other rights depending on its jurisdiction.
14. Governing Law; Jurisdiction
The Agreement is governed by the laws of the State of New York, without regard to conflict-of-law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
Disputes shall be submitted to the exclusive jurisdiction of state or federal courts in New York, City of New York, Borough of Manhattan, except that Seller may seek specific performance or injunctive relief in any competent court. Each party waives defenses that would allow another forum.
Each party waives, to the fullest extent permitted by law, any right to a jury trial in any legal proceeding arising from or relating to these Terms.
15. Title; Security Interest
To secure payment, Buyer grants Seller a first security interest in current and future inventory of the Products and proceeds until payment in full. Seller may file financing statements and take actions necessary to perfect and protect that interest. Buyer shall provide information and execute documents, keep collateral insured and protect it from the elements, theft and vandalism. Seller may change or withdraw credit extensions without notice.
16. Indemnification
Buyer shall indemnify and hold Seller harmless against losses, claims, damages, expenses, attorneys’ fees, court costs and liabilities arising from modification, integration, development, use, misuse, promotion, sale, manufacture or disposition of Products or derivatives by Buyer or its employees, agents or customers, misrepresentations to third parties, design or labeling defects in Buyer’s products, violation of law, or use of Tooling or Samples.
17. Insurance
Buyer shall obtain and maintain adequate insurance for its obligations, including indemnification obligations, naming Seller and its successors and assigns as additional insureds. Upon request, Buyer shall provide evidence of compliance.
18. Compliance with Applicable Laws, Rules and Regulations
Buyer shall comply with applicable federal, state and local laws, rules and regulations concerning the use and sale of Products and maintain all permits, approvals and authorizations required for its activities.
19. Confidential Information
Information furnished to Buyer in connection with a Confirmed Order is confidential. Buyer shall keep it confidential, shall not reproduce, use or disclose it without Seller’s consent, and shall return it upon request or completion of the last Confirmed Order. Seller may seek equitable relief for actual or threatened violations in addition to other remedies.
20. Changes
No change to the Agreement or cancellation of a Confirmed Order is binding without Seller’s written consent. Seller may amend these Terms from time to time; changes do not apply to Confirmed Orders made before their effective date.
21. Severability
If a term is invalid, illegal or unenforceable in a jurisdiction, the remaining provisions remain effective and the term is not invalidated elsewhere.
22. Entire Agreement; Conflicts
These Terms and the applicable Confirmed Orders constitute the entire agreement and supersede prior agreements and communications. If these Terms conflict with a Confirmed Order, the Confirmed Order prevails.
23. Assignment
Seller may assign rights or delegate liabilities at any time. Buyer may not assign rights or delegate responsibilities without Seller’s prior written consent.
24. Waiver
Seller’s waiver of a breach is not a waiver of any other present or future breach.
25. Independent Contractors
The parties are independent contractors. Nothing creates a joint venture, partnership, employment or agency relationship.