- In addition to the agreed price for any product, you shall be responsible for any excise, sales, use or similar taxes imposed by the laws of the United States, or of any state, municipality, or other authority which we may be required to pay, or to reimburse to others, by reason of the manufacture, ownership, use or sales of any product sold hereunder and we may invoice you therefore as we may determine. All products shall be shipped FCA Seller’s plant (Incoterms 2010) unless otherwise agreed in writing by Seller.
- Legal title to the product shall transfer to Buyer as follows: for sales in which the end destination of the product is within the United States, upon delivery to the freight carrier at the shipping point; for sales in which the end destination of the product is outside of the United States, immediately after the product has passed beyond the territorial limits of the United States.
- Payments not received within thirty (30) days of the date of invoice shall be subject to interest accrued at the rate of eighteen percent (18%) per annum or at the maximum rate allowed by applicable law, whichever is less. We shall also be entitled to reimbursement from you of the expenses, including attorneys’ fees, incurred in collecting any overdue payments.
- Any invention created in the course of our producing product under this order shall be our property.
- Neither you nor we shall be liable to the other party hereto for any loss, damage or delay due to any cause beyond your or our reasonable control, including, but not limited to, acts of government, strikes, lockouts, fire, explosion, theft, floods, riot, civil commotion, war, malicious mischief, or acts of God.
- We warrant that the product sold shall be free from defects, except those reasonably likely to result from the quality required or permitted, in material and workmanship for ninety (90) days from the date of receipt by you. Our duty and your remedy under this warranty is limited to us correcting any such defect reported to us within the warranty period by, at our option, repair or replacement, provided that you are not otherwise in default. Exchanged parts become our property. We do not agree under this warranty to bear the cost of repairs or replacements due to vandalism, abuse, misuse, neglect, normal wear and tear, modifications not executed by us, improper handling by others, or any causes beyond our control. WE EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY RELATING TO INTELLECTUAL PROPERTY INFRINGEMENT OF OUR PRODUCTS. UNLESS SPECIFICALLY DISCLOSED ON THE FACE OF THIS DOCUMENT, WE MAKE NO REPRESENTATION OF ROHS COMPLIANCE.
- UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT, LOSS OF GOOD WILL, LOSS OF BUSINESS OPPORTUNITY, ADDITIONAL FINANCING COSTS, OR LOSS OF USE OF ANY EQUIPMENT OR PROPERTY, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), IN WARRANTY OR OTHERWISE. YOUR REMEDIES SET FORTH HEREIN ARE EXCLUSIVE AND OUR LIABILITY WITH RESPECT TO ANY CONTRACT, OR ANYTHING DONE IN CONNECTION THEREWITH SUCH AS PERFORMANCE OR BREACH THEREOF, FROM THE MANUFACTURE, SALE, DELIVERY, INSTALLATION, REPAIR OR USE OF ANY PRODUCT FURNISHED UNDER THIS CONTRACT, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), IN STRICT LIABILITY, IN WARRANTY OR OTHERWISE, SHALL NOT EXCEED THE PRICE FOR THE PRODUCT.
- We agree to indemnify you, your directors, officers, and employees from and against all loss, liability, obligation, damage, penalty, cost, charge or expense (including reasonable attorneys’ fees) which any of them may suffer, incur, or pay out by reason of, but only to the extent of, any grossly negligent, reckless or intentionally malicious act, error or omission of ours, our employees, agents, or subcontractors in connection with the sale of the product. Our indemnification of you is expressly conditional on timely notification of any claim and our having the right to control any proceedings. You agree to indemnify us, our directors, officers, and employees from and against all loss, liability, obligation, damage, penalty, cost, charge or expense (including reasonable attorneys’ fees) which any of them may suffer, incur, or pay out by reason of, but only to the extent of 1) any negligent, reckless or intentionally malicious act, error or omission of you, your employees, agents, or subcontractors in connection with purchase of the product and 2) claims of intellectual property infringement relating to your modification of our product or incorporation by you of our product into another product.
- If this product is produced in accordance with your specification, the indemnification provisions of Uniform Commercial Code Section 2-312 shall apply. Our sale of a product in accordance with your specification does not create any relationship of exclusivity between the parties and we may sell similar products to others.
- If this product is purchased under work funded by the U.S. Government and the Federal Acquisition Regulations apply, FAR 52.227-1 Alternate 1 shall apply and FAR 52.227-3 shall not apply.
- The formation of a contract in this transaction is expressly made conditional upon the terms and conditions on the face hereof and all accompanying pages being part of the contract. Our terms and conditions supersede any conflicting terms provided by you, furthermore shall not be modified by any terms on your order form or any other document, and supersede any prior written or oral communication relating to the same subject. Any amendments or modifications hereto shall not be binding upon either party unless agreed to in writing by an authorized representative of each party.
- In consideration of our investment to achieve a fiber meeting your specifications, your purchase order represents a binding commitment to buy the quantity stated during the period stated. Failure to honor this commitment shall be a breach of contract and we shall be entitled to the full measure of damages, including lost profits.
- We reserve the right to unilaterally terminate any offer or contract with you at any time prior to shipment if performance of the contract may violate, in our judgment, any applicable laws or regulations relating to the export of products or technology.
- This agreement shall be governed by the laws of the State of Connecticut (or U.S. Federal Law if such law preempts Connecticut Law), without regard to conflicts of law provisions, and each of us submits to the jurisdiction of courts located in such state and waives any objection based on forum non conveniens or venue.
PATENT NOTICE: Nufern owns or has licensed certain patents/patent applications ("Nufern Patents"). However, product modification, combination with another product or specific uses of a product can require additional licensing by the customer of third party or Nufern Patents. You are responsible for determining whether such licensing is required. For example, Nufern is licensed under IMRA U.S. Patent No. 5,818,630 and its foreign counterparts (“IMRA ‘630 Patents”), however, Nufern is not entitled to pass on to its customers a right under the IMRA ‘630 Patents to modify this product such that it would infringe the IMRA ‘630 patents. If you intend to make, use, sell, offer to sell or import any product which would infringe the IMRA ‘630 Patents, you should contact IMRA at 1044 Woodridge Avenue, Ann Arbor, MI 48105 to acquire a license. Nufern is licensed under U.S. Patent No. 6,496,301 (“’301 Patent) and can sell fiber coiled so as to be covered by the ‘301 Patent. However, purchase of fiber does not include a license or implied license to the ‘301 Patent, and if a purchaser intends to itself coil purchased fiber so as to be covered under a claim of the '301 Patent, the purchaser should contact the Naval Research Laboratory, Technology Transfer Office, 4555 Overlook Avenue, SW, Washington, DC 20375 concerning a license.
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