VACUUM ENGINEERING & MATERIALS - TERMS & CONDITIONS OF SALE
1. Agreement. Seller's acceptance of any Order by Purchaser is expressly conditioned on Purchaser's agreement to these Standard Terms and Conditions of Sale. These Terms and Conditions of Sale are a part of the order or other written agreement ("Order") between the purchaser specified in the Order ("Purchaser") and Vacuum Engineering Materials Co., Inc. ("Seller") for Purchaser's purchase of products ("Products") from Seller. The Order and these Terms and Conditions of Sale are sometimes referred to herein as this Agreement. Seller will not be bound by, and specifically objects to, any term, condition, or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) which is proffered by Purchaser in any purchase order, receipt, acceptance, confirmation, correspondence, Order or otherwise, unless Seller specifically agrees to such provision in a written instrument signed by Seller.
2. Purchase and Sale; Special Orders. Seller will sell to Purchaser, and Purchaser will accept and pay for, all Products ordered by Purchaser pursuant to an Order which has been accepted by Seller. All Orders are subject to acceptance by Seller either in writing or by shipping Products. Seller reserves the right to ship, as a complete Order, Orders with variances of up to 10% on quantity of precious metals in Products for custom or non-standard Orders involving precious metals (“Custom Orders”). All Custom Orders are “Final” and may not be accepted for refund for any purpose. Seller may accept any Order in whole or in part and Seller's shipment of less than all Products ordered will constitute acceptance only as to those Products shipped.
3. Delivery, Acceptance and Returns. Seller will use commercially reasonable efforts to meet any delivery date specified in the Orders, but will not be liable for any failure to meet such dates. All shipments to Purchaser shall be shipped ExWorks Seller’s place of business. All Products, including Custom Orders, delivered to Purchaser that materially conform in all respects to the Order will be deemed accepted upon delivery. In the event the parties agree to the return of any Products (other than Products ordered pursuant to a Custom Order, which may not be returned by Purchaser), all fees and expenses, including packaging and shipment (which shall be shipped by Purchaser from Purchaser’s Place of Business to Seller’s place of business in California), of such returned Products or any portion thereof will be at Purchaser's expense unless otherwise agreed to in writing by Seller. Seller has no obligation or liability for any installation of the Products or to supervise such installation unless otherwise agreed to in writing by Seller.
4. Prices and Taxes. Purchaser will pay Seller the prices specified in the applicable Order or, if no price is specified in the Order, the price set forth in Seller's standard price list in effect on the date that the Order is accepted by Seller, subject to Seller’s reserved right to change prices at time of receipt of an Order based on the availability and pricing of materials included in the Products, including, without limitation, due to fluctuations in precious metal market prices for Products including precious metals that may fluctuate due to market prices. All prices are in United States dollars, ExWorks. Purchaser will pay or reimburse Seller for all shipping costs, taxes and other amounts payable to governmental authorities in connection with the applicable transactions, or will provide Seller with an exemption certificate satisfactory to Seller. Purchaser assumes all liability for shortage, loss, delay or damage of Products in transit. Purchaser agrees that it will keep the terms of sale and purchase price confidential and will not disclose the same to any third party without the prior written consent of Seller.
5. Payment. Purchaser will pay the amount set forth on Seller's invoice or Order in United States dollars within (i) thirty (30) days from the date of such invoice, or as otherwise set forth in the invoice or Order, whichever is shorter for Products that are comprised of non-precious metals, and (ii) ten (10) days from the date of such invoice or as otherwise set forth in the invoice or Order for Products that are comprised of precious metals, in whole or in part. Any wire or other fees associated with payment of invoices is the sole responsibility of Purchaser. Any amount not timely paid will be subject to a finance charge equal to 1.5% per month or the highest rate allowable by applicable laws, whichever is less, determined and compounded daily from the date due until the date paid, and further Purchaser, at its sole discretion, may treat such delinquency as a repudiation by Purchaser and cancel the Order or any pending Orders and any unpaid amounts due for prior services and Products will become immediately due and payable. Payment of finance charges will not excuse or cure Purchaser's breach or default for late payment or any other Purchaser’s breaches or defaults. Further, Purchaser will reimburse any costs or expenses (including, but not limited to, reasonable attorneys' fees) incurred by Seller to collect any amount not paid when due. Seller may accept any payment in any amount without prejudice to Seller's right to recover the balance of the amount due or to pursue any other right or remedy against Purchaser. No endorsement or statement on any payment, accompanying any payment or elsewhere will be construed as an accord or satisfaction. In the event of a payment default for precious metals, in Seller’s discretion, Seller may seek return of or reclaim the precious metals from Purchaser, without making prior demand for payment.
6. Limited Warranty and Remedy. Seller warrants that, upon delivery, each Product will (a) be free from defects in material and workmanship, and (b) will, in all material respects, meet the specifications in Seller's accompanying or related catalogs, manuals and other documentation available from or provided by Seller or an authorized representative of Seller. The foregoing warranty will be in effect for thirty (30) days from the date of delivery of the Products (each, a "Warranty Period"). If Purchaser gives Seller written notice during the Warranty Period of any Product's failure to comply with this warranty, Seller will use commercially reasonable efforts to correct the noncompliance within a reasonable period of time by: (i) repairing or modifying the non-complying Product; (ii) providing Purchaser with a replacement Product; or (iii) refunding the price paid by Purchaser to Seller for the Product, each at Seller's sole discretion. This warranty will not apply to any Product that (x) was ordered pursuant to any Custom Order or otherwise involves any precious metals, and all such Orders are “Final”, (y) has been repaired or altered by unauthorized personnel, or (z) has been misused, abused, damaged or subjected to operation for which it was not intended. Furthermore, the foregoing warranty does not apply to conformance with any purity specifications. Purity specifications for items within the Products are those generally found acceptable for the purposes intended in the industry. Seller will use commercially reasonable efforts to limit the presence of undesirable or generally unacceptable elements and compounds in the items furnished hereunder, as specified in the Order.
7. DISCLAIMER AND RELEASE. THE WARRANTIES, OBLIGATIONS, AND LIABILITIES OF SELLER AND THE REMEDIES OF PURCHASER SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND PURCHASER HEREBY WAIVES, RELEASES AND DISCLAIMS, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF SELLER AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF PURCHASER AGAINST SELLER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE PRODUCTS AND ANY OTHER GOODS OR SERVICES DELIVERED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE (ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY OF SELLER; AND (D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR INFRINGEMENT.
8. Excused Performance. Seller will not be responsible for or be considered to be in breach of or default under this Agreement on account of any cause beyond Seller's reasonable control or not occasioned by Seller's fault or negligence (including, but not limited to, Seller's inability to procure materials, parts, equipment or services).
9. LIMITATIONS OF LIABILITY. SELLER'S LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE, AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY OF SELLER) WITH REGARD TO ANY PRODUCT OR OTHER GOODS OR SERVICES FURNISHED UNDER THIS AGREEMENT WILL NOT EXCEED THE PURCHASE PRICE PAID BY PURCHASER TO SELLER FOR THE SAME. FURTHER, SELLER WILL NOT IN ANY EVENT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, OR FOR LOSS OF REVENUE, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS, ARISING OUT OF OR IN CONNECTION WITH ANY PRODUCT OR OTHER GOODS OR SERVICES FURNISHED UNDER THIS AGREEMENT. NOTHING HEREIN IS INTENDED TO OR SHALL LIMIT ALL OF SELLER’S RIGHTS UNDER THE UNIFORM COMMERCIAL CODE OR OTHER APPLICABLE LAWS.
10. Title. From the time of the transfer of title of Products from Seller to Purchaser, Seller shall have a security interest in the Products and any good into which the Products are incorporated until such time as all amounts due for and in connection with the Products have been completely paid. Purchaser hereby authorizes Seller to file all needed financing statements to perfect this security interest and appoints Seller as its attorney-in-fact to take all steps necessary to perfect Seller's security interest in the Products. Neither this Agreement nor the sale or transfer of the Products confers upon Purchaser any license, express or implied, under any patent rights, copyrights, trade secret rights, trademark rights, or other intellectual property rights, and, as between the parties, Seller owns all patent rights, copyrights, trademark rights, trade secret rights and other intellectual property rights related to the Products. Purchaser will not attempt to reverse engineer any Product or component thereof or to otherwise misappropriate, circumvent or violate any of Seller's intellectual property rights or other rights and interests
11. Credit Approval. All shipments of Products are subject to the approval of Seller's finance department, and if such approval is not obtained or is withdrawn at any time by Seller's finance department, Seller will have the right to cease performance of any future or existing Orders and withhold delivery of any such deliveries without any penalty or liability of any kind, and all fees for any outstanding Orders will be immediately due and payable by Purchaser. Any credit terms offered by Seller are in effect only as long as Purchaser complies with all its obligations to Purchaser, including without limitation, the provisions of these terms and conditions, Orders and invoices. Upon this cessation of Seller’s provision of credit to Purchaser, Purchaser shall pay cash in advance for all purchases, unless otherwise agreed by Seller. Additionally, if Seller at any time doubts the ability of Purchaser to meet its payment obligations to Seller, at Seller’s sole discretion, Seller may decline to make further shipments except upon cash in advance terms or such other terms as are agreeable to Purchaser.
12. Unenforceable Provision. The invalidity or unenforceability of any provision of this Agreement will not affect the validity and enforceability of the remainder of this Agreement, and this Agreement will be construed in all respects as if such invalid or unenforceable provision were replaced with a valid and enforceable provision as similar as possible to the one replaced, if practical, and if not practical the remainder of the Agreement will be deemed to be valid, enforceable and not affected thereby.
13. Nonwaiver. Any failure by Seller to insist upon or enforce performance by Purchaser of any of the provisions of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of Seller's rights or remedies
14. Assignment. This Agreement will inure to the benefit of and be binding upon the parties and their respective permitted successors, assigns and legal representatives. Purchaser may not assign this Agreement without the consent of Seller, which consent will not be unreasonably withheld.
15. Applicable Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law principles. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
16. Attorneys' Fees. In any litigation or other proceeding between the parties arising out of or in relation to this Agreement, the prevailing party will be awarded, in addition to any damages, injunctions or other relief, such party's costs and expenses, including but not limited to reasonable attorneys' fees and costs.
17. Entire Agreement. This Agreement constitutes the entire agreement, and supersedes any and all prior agreements, between Seller and Purchaser with regard to the Products. No amendment, modification, or waiver of this Agreement will be valid unless set forth in a written instrument signed by the party to be bound.
18. Force Majeure. If Seller is prevented from or hindered in making delivery of Product or the making of delivery is delayed by reason of force majeure (which shall be deemed for this purpose to include war, civil commotion, act of terrorism, hijacking, strike, walkout, industrial dispute, fire, explosion, storm, tempest, flood, act or omission of any governmental, licensing or other similar body or of a person or body for the time being exercising the power and authority of such body (whether in Canada, the United States of America or elsewhere) or any further cause not within the direct control of the Seller), Seller shall be under no liability whatsoever in respect thereof and the time for delivery by Seller shall be extended for a period equal to that during which delivery is so prevented, hindered or delayed; notwithstanding the foregoing, however, Seller may, if it so chooses, by notice in writing given to Purchaser, advise that it will not make the delivery affected by the force majeure.
19. Other Defaults. In addition to the defaults described above, Purchaser will be in default if (a) Purchaser makes a general assignment for the benefit of its creditors, commences a receivership case, bankruptcy case or other similar proceeding, or an involuntary bankruptcy case is filed against Purchaser which case remains pending thirty (30) days after filing. To the extent consistent with applicable law, upon such an event of default, Seller, in its sole discretion, may cease delivery other than for cash in advance, demand and receive immediate payment of all amounts dues to Seller, demand reclamation, including without limitation, reclamation exclusively of precious metals, and suspend further deliveries, and in such circumstances Purchaser will be and remain liable to Seller for all loses Seller sustains.
Revision Date 10/04/2016