Terms and Conditions, Sales Policies
Simco-Ion Industrial Group Terms and Conditions
All orders are subject to acceptance by Simco-Ion. Additional or different terms or any attempt by the Buyer to vary, in any degree, any of the terms of this sales agreement form shall be deemed material and are objected to or rejected, but this sales agreement form shall not operate as a rejection of the Buyer's offer unless it contains variances in the terms of the description, quantity, price or delivery schedule of the goods. The terms and conditions hereof become the exclusive and binding agreement between the parties covering the purchase of the goods or services ordered here in when this order is accepted by acknowledgement or commencement of performance. This purchase order can be accepted only on these terms and conditions. Additional or different terms proposed by seller will not be applicable unless accepted in writing by the buyer. No change, modification or revision of this purchase order shall be effective unless in writing and signed by buyer.
Invoices shall contain the following information: purchase order number, item number, description of goods, sizes, quantities, unit prices and extended totals in additional to any other information specified elsewhere herein. Payment of invoice shall not constitute acceptance of goods or services and shall be subject to adjustment for errors, shortages, defects in the goods or other failure of Seller to meet the requirements on the Purchase Order. Buyer may at any time set off any amount owed by Buyer to Seller against any amount owed by Seller or any of its affiliated companies to Buyer. Partial shipments must be invoiced separately.
C. Payment Terms
Simco-Ion's payment terms are net 30 days unless special written arrangements have been made. Simco-Ion may, at any time, suspend performance of any order or require payment in cash, security or other adequate assurance satisfactory to Simco-Ion when, in Simco-Ion's opinion, the financial condition of Buyer or other grounds for insecurity warrant such action. Simco-Ion reserves the right to assess late charges on accounts due past 30 days at the rate of 18% per annum. All goods are shipped Ex Works and are the property of the Buyer upon shipment. Buyer expressly grants a security interest in the products to Simco-Ion, and all proceeds from any sale thereof, sold to the extent of the invoice amount. If Buyer defaults in any obligation hereunder, Simco-Ion, in addition to all other rights and remedies under these terms and conditions, will be entitled to all rights, powers and remedies, available to a secured party under the California Commercial Code. Buyer acknowledges that this Section C constitutes a security agreement and hereby authorizes Simco-Ion to file a copy of this acknowledgment. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement. On request of Simco-Ion, Buyer will execute any instruments Simco-Ion will desire to perfect its security interest.
D. Cash Discounts
Time in connection with any discount offered will be calculated from (i) the scheduled delivery date (ii) the date of actual delivery or (iii) the date an acceptable invoice is received, whichever is latest. For the purpose of earning the discount, payment is deemed to be made on the date of mailing of the Buyer's check.
Unless otherwise specified, the agreed prices include all applicable federal, state, and local taxes. All such taxes shall be stated separately on Seller's invoice.
Upon written notice of cancellation or termination for the Buyer's convenience of standard catalog items, for standard product only, the Buyer is subject to a minimum 15% charge on the remaining balance and a charge reflecting a reversion to the quantity pricing of items actually delivered. In the event that the goods are special, non-standard or custom the Buyer may terminate this order in whole or in part for its convenience upon written notice to Simco-Ion in which event Simco-Ion shall be entitled to termination charges consisting of a percentage of the order price reflecting the percentage of the work performed prior to termination plus actual direct costs resulting from termination.
G. Remedies in the Event of Default
In the event the Buyer becomes overdue on its account payable to Simco-Ion by failing to pay for this order when due in accordance with the terms hereof, in addition to the charges assessed to the Buyer pursuant to Paragraphs C and F of this Agreement, the buyer shall be required to pay all costs of collection, including, whether suit be brought or not, attorney fees, court costs, collection expenses and other expenses which Simco-Ion may incur or pay in the prosecution of defense of its rights hereunder whether in judicial proceedings at law or in equity, including bankruptcy court and appellate proceedings, or whether out of court. In addition, Simco-Ion shall retain the right to terminate this Agreement and Buyer's right to use the Software (as term is defined below) upon any material breach of this Agreement by Buyer. Buyer agrees to return to Simco-Ion or to destroy all copies of the Software upon termination of this Agreement.
(a) Time is of the essence. Failure to deliver as scheduled constitutes default.
(b) Buyer will pay only for maximum quantities ordered. Over shipments will be held at Seller's risk and expense for a reasonable time awaiting shipping instructions. Return shipping charges for excess quantities will be at Seller's expense.
(c) No partial delivery shall be made unless buyer has given prior consent.
(d) No delivery shall be made hereunder prior to the date or dates shown unless Buyer has given prior consent.
The promised delivery date is the best estimate possible, based upon current and anticipated manufacturing capabilities, of when the product will be shipped. Simco-Ion assumes no liability for loss, damages or consequential damages due to delay.
In any event, Simco-Ion shall not be in default for any failure to deliver Products to Buyer by the promised delivery date. In the event that Simco-Ion so defaults, Buyer's sole remedy for such default shall be cancellation of the applicable order. Simco-Ion shall have no other liability to Buyer as a consequence of any such default.
I. Packing and Shipment
Unless otherwise specified, when the price of this order is based on the weight of the ordered goods, such price is to cover net weight of goods ordered only, and no charges will be allowed for boxing, crating, handling damage, carting, drayage, storage, or other packing requirements. Unless otherwise specified all goods shall be packed, packaged, marked, and otherwise prepared for shipment in a manner which is (i) in accordance with good commercial practice, (ii) acceptable to common carrier for shipment at the lowest rate for the particular goods and in accordance with I.C.C. regulations, and (iii) adequate to insure safe arrival of the goods at the named destination. Seller shall mark all containers with the necessary lifting, handling and shipping information and also purchase order numbers, date of shipment, and the names of the consignee and consignor. An itemized packaging sheet must accompany each shipment.
J. Responsibility for Goods
Notwithstanding any prior inspections, and irrespective of the F.O.B. point named herein, the Seller shall bear all risk of loss, damage, or destruction to the goods called for hereunder until final acceptance by Buyer at destination. Further, the Seller shall also bear the same risks with respect to any goods rejected by Buyer provided, however, that in either case, the Buyer shall be responsible for any loss occasioned by the gross negligence of its employees acting within the scope of their employment.
K. Force Majeure
Fulfillment of this order is contingent upon the availability of materials. Simco-Ion shall not be liable for any delay in delivery or for non-delivery in whole or in part caused by the occurrence of any contingency beyond the control of either Simco-Ion or suppliers to Simco-Ion including but not limited to delay in transportation, labor disruption, earthquake, fire, acts of God, or any other act outside of Simco-Ion's reasonable control.
L. Quality Assurance
(a) All goods purchased hereunder shall be subject to inspection and test by Buyer to the extent practicable at all times and places, including the period of manufacture and in any event, prior to final acceptance. If inspection or test is made by Buyer on Seller's premises, Seller without additional charge, shall provide all reasonable facilities and assistance for the safety and convenience of Buyer's inspectors. No preliminary inspection or test shall constitute acceptance. Records of all inspection work shall be kept complete and available to Buyer during the performance of this order and for such further period as the Buyer may determine.
(b) In case any goods are defective in material or workmanship or otherwise not in conformity with the requirements of this order, Buyer shall have the right either to reject, require correction, or accept such goods with an adjustment in price. Any goods which have been rejected or required to be corrected shall be replaced or corrected by and at the expense of the Seller promptly after notice. If, after being required by Buyer, the Seller fails to promptly replace or correct any defective goods within the delivery schedule, Buyer may (i) by contract or otherwise, replace or correct such goods and charge to the Seller the cost occasioned hereby: (ii) terminate this order for default in accordance with the clause hereof entitled "TERMINATION FOR DEFAULT, (iii) and require an appropriate reduction in price.
(c) the Seller shall provide and maintain quality assurance program which is acceptable to Buyer.
Simco-Ion equipment has been carefully tested and inspected at the factory and is warranted to be free from any defects in material or workmanship. The warranty extends to the original buyer only, under which Simco-Ion will, under warranty, repair or replace any equipment which proves, upon our examination, to have become defective within the Warranty period from the date of purchase. A one-year warranty applies to all Simco-Ion and Teknek equipment. A six-month warranty applies to all Eltex equipment. Equipment is to be returned by the purchaser to Simco-Ion, 2257 North Penn Road, Hatfield, Pennsylvania, 19440, transportation prepaid and insured for its full purchase price. Prior to returning goods, regardless of the reason, contact Simco-Ion Customer Service for a Return Authorization Number. This number must accompany all returns. The Warranty does not apply when the equipment has been tampered with, misused, improperly installed, altered, has received damage through abuse, carelessness, accident, connected to improper line voltage, or has been serviced by anyone other than an authorized factory representative. The Warranty does not apply when Simco-Ion parts and equipment have been energized by other than appropriate Simco-Ion power supply or generator, or when Simco-Ion power supplies or generators have been used to energize other than Simco-Ion parts and equipment. Simco-Ion makes no warranty, expressed or implied, nor accepts any obligation, liabilities, or responsibility in connection with the use of these products other than the repair or replacement of parts stated herein. In the event that Simco-Ion repairs or replaces a defective Product under warranty, the repaired or replaced Product will be covered through the end of the original warranty period or ninety (90) days from the date or the repair/replacement whichever is longer. Non-Warranty or New Service repairs will be warranted for ninety (90) days.
N. Claims/Notice of Defects
Failure of the Buyer to object in writing to any merchandise shipped to it by Simco-Ion within 30 days after receipt thereof will constitute complete acceptance by Buyer of such merchandise. Rejected material must be returned to Simco-Ion within 45 days after receipt and with prior authorization from Simco-Ion. Simco-Ion may (at its option) recondition or replace the rejected material to meet Buyer's specifications within a reasonable time period after receipt. Claims for shipping damage must be made with the carrier.
All products must be returned in the same packing conditions in which it left Simco-Ion's manufacturing location(s) (anti-static rails and boxes, adequately protected, etc.). Buyer must pay return shipping.
Buyer may at anytime, by a written order and without notice to sureties or assignees, suspend performance hereunder increase or decrease the order quantities, or make changes within the general scope of this order in any one or more of the following:
(a) applicable drawings, designs, or specifications
(b) method of shipment or packing, and/or
(c) place and date of delivery
If any such change causes an increase or decrease in the cost of or the time required for performance of this Purchase Order, an equitable adjustment shall be made in the Purchase Order price or delivery schedule, or both, and the order shall be modified in writing accordingly. No claim by Seller for adjustment hereunder shall be valid unless asserted within twenty (20) days from the date of receipt by Seller of the notification or change provided, however, that such period may be extended upon the written approval of Buyer. However, nothing in this clause shall excuse Seller from proceeding with the order as changed or amended.
P. Termination for Default
(a) Buyer may by notice terminate this Purchase Order in whole or in part (i) if Seller fails to deliver goods or services on agreed delivery schedules (ii) if Seller fails to replace or correct defective goods or services; (iii) if Seller fails to perform any other obligations or, (iv) if Seller becomes insolvent.
(b) In the event of termination pursuant to this section: (i) Seller shall continue to supply any portion of this Purchase Order not terminated; (ii) Seller shall be liable for additional costs, if any, for the purchase of such similar goods and services to cover such default; (iii) At Buyer's request Seller will transfer title and deliver to Buyer (1) any completed goods, (2) any partially completed goods and (3) all unique materials. Prices for partially completed goods and unique materials so accepted shall be negotiated. However, such prices shall not exceed the Agreement price per item.
(c) Buyers rights and remedies herein are in addition to any other rights and remedies provided by law or in equity.
Q. Termination for Convenience
(a) Buyer may terminate for convenience, work under this Purchase Order in whole or in part, at any time by written or electronic notice. Upon any such termination Seller shall, to the extent and at the time specified by Buyer, stop all work on this Purchase Order, place no further orders hereunder, terminate work under orders outstanding hereunder, assign to Buyer all Seller's interests under terminated sub-contracts and orders, settle all claims thereunder after obtaining Buyer's approval, protect all property in which Buyer has or may acquire an interest, and transfer title and make delivery to Buyer of all goods, materials, work in process, or other things held or acquired by Seller in connection with the terminated portion of this Purchase Order. Seller shall proceed promptly to comply with Buyer's directions respecting each of the foregoing without awaiting settlement or payment of its termination claim.
(b) Within six (6) months from such termination seller may submit to Buyer its written claim for termination charges, in the form and with supporting data and detail prescribed by Buyer. No profit shall be allowed if it appears Seller would have sustained a loss on the Purchase Order. Failure to submit such claim with such items shall constitute a waiver of all claims and a release of all Buyer's liability arising out of such termination.
(c) The parties may agree upon the amount to be paid Seller for such termination. If they fail to agree, Buyer shall pay Seller the amount due for goods delivered prior to termination and in addition thereto, but without duplication shall pay the following amounts. (i) The contract price for all goods completed in accordance with this Purchase Order and not previously paid for. (ii) The actual costs for work in process incurred by Seller which are properly allocable or apportionable under recognized commercial accounting practices to the terminated portion of this Purchase Order and a sum constituting a fair and reasonable profit on such costs. If its appears Seller would have sustained a loss on the Purchase Order, no profit shall be allowed under this subparagraph (ii) and an adjustment shall be made reducing the amount of the settlement to reflect the indicated rate of loss. (iii) the reasonable costs of Seller in making settlement hereunder and in protecting goods to which Buyer has or may acquire an interest.
(d) Payments made under subparagraphs Q (c)(i) and Q(c)(ii) shall not exceed the aggregate price specified in this order, less payment otherwise made or to be made. Buyer shall have no obligation to pay for goods lost, damaged, stolen or destroyed prior to delivery to Buyer.
(e) The foregoing paragraphs (a) to (d) inclusive shall be applicable only to a termination for Buyer’s convenience and shall not affect or impair any right of Buyer to terminate this order for seller's default in the performance hereof.
R. Confidential Information
All drawings, diagrams, specifications and other materials furnished by Simco-Ion and identified as confidential, or information which the Buyer knows or has reason to know is confidential, proprietary or trade secret information of Simco-Ion, relating to the use and service of articles furnished hereunder and the information therein, are proprietary to Simco-Ion. Buyer may not reproduce or distribute such materials except to buyer's employees who may use the articles as part of their duties.
Customer agrees that it will take all reasonable measures to maintain the confidentiality of all confidential information in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of equal importance. Accordingly, Simco-Ion will be entitled to preliminary and permanent injunctive relief and other equitable relief for any breach of this Section R.
Buyer further acknowledges and agrees that the sale of products to Buyer does not convey any license express or implied, and Buyer shall not, manufacture, modify, reverse engineer, duplicate, otherwise copy or reproduce any of the products or any part thereof.
S. Non-disclosure of Confidential Buyer’s Property
(a) All specifications, drawings, samples, data, technical information, tools, equipment and other materials furnished or paid for by Buyer or amortized in the unit price of items purchases by Buyer, shall (i) be kept confidential and not be disclosed to third parties, (ii) remain or become Buyer's property, (iii) be used by Seller exclusively for Buyer's orders, (iv) be clearly marked as Buyer's property and segregated when not in use, (v) be kept in good condition at Seller's expense, and (vi) be returned to Buyer promptly upon request. Seller shall insure Buyer's property and be liable for loss or damage while in Seller's possession or control, ordinary wear and tear excepted.
(b) Goods purchased hereunder with the Buyer's specifications or drawings shall not be quoted for sale to others without the Buyer's written authorization.
T. Patent or Trademark Infringement
Simco-Ion warrants that the goods delivered hereunder do not infringe on any third party's U.S. patents or trademarks issued as of the date such goods were shipped by Simco-Ion and agrees to indemnify the Buyer against any claims made against Buyer based upon any assertion that the goods do infringe on the claimant's U.S. patents or trademarks, subject to the following:
The Buyer notifies Simco-Ion promptly in writing of any claim.
Simco-Ion shall have sole control of the defense in any action arising from such a claim, including settlement negotiations.
Buyer provides Simco-Ion with the assistance, information and authority necessary to perform the above. The Buyer will indemnify and hold Simco-Ion harmless from any claim of patent or trademark infringement if such claim relates to either use or sale by Buyer or any of Simco-Ion's products in any combination, method or process or compliance to specifications furnished by the Buyer. In no case shall Simco-Ion indemnify a Buyer who has modified the product.
Simco-Ion will not pay or indemnify Buyer against any settlement costs or damage awards, made without its knowledge and written consent. Simco-Ion will have no obligation to Buyer with respect to infringement beyond that stated in this Section J. The foregoing are Simco-Ion's sole and exclusive obligations, and buyer's sole and exclusive remedies, with respect to infringement or misappropriation of intellectual property rights. In no event will Simco-Ion have any obligations under this Paragraph T or any liability for any claim or action if the infringement claim is caused by, or results from: (1) Buyer's combination or use of the Software with software, services, or products developed by Buyer or third parties, other than as intended under this Agreement, (2) modification of the Software by anyone other than Simco-Ion if such infringement claim would have been avoided by use of the unmodified Software, (3) Buyer's continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, or (4) Buyer's use of the product in a manner not in accordance with this Agreement.
U. Software; Restricted License
The Simco-Ion products consist of certain proprietary hardware (the "Hardware") and certain proprietary software (the "Software"). Simco-Ion hereby grants to Buyer or Buyer's end user, a limited, non-transferable (without the right to distribute or sublicense), non-exclusive right and license to use the Software solely in conjunction with such Hardware during the term of this Agreement. Buyer receives no title or ownership rights to such Software. Except for the license granted in this Section V, all right, title and interest in the Software shall remain the exclusive property of Simco-Ion or its licensors. This Agreement does not entitle Buyer to the receipt or use of, or access to, Software source code or any right to reproduce the Software or any related documentation, and Buyer agrees that it shall not decompile, disassemble, compile or reverse engineer the Software or otherwise attempt to gain access to the Software source code, except with sample applications and integration tools that are provided with source code to assist in customer integration. See Paragraph N regarding warranty disclaimers.
V. Patents License
Seller as part consideration for this Purchase Order and without further cost to Buyer, hereby grants to Buyer an irrevocable, non-exclusive, paid-up right and license to make, have made, use, and sell any inventions made by or for Seller in the performance of this Purchase Order. In addition, Buyer shall be entitled to license Buyer’s customers to use such inventions during the operation of Buyer’s products.
Seller shall maintain (1) comprehensive general liability insurance covering bodily injury, property damage, contractual liability, products liability and completed operations. (2) Worker's Compensation and employer's liability insurance, and (3) auto insurance, in such amounts as are necessary to insure against the risk of Seller's operations. Upon request, Seller shall furnish to Buyer certificates evidencing such coverage. Seller shall notify Buyer at least thirty (30) days prior to the cancellation or change of any of the foregoing policies.
Seller warrants that it has not offered or given and will not offer or give to any employee, agent, or representative of Buyer any gratuity. Any breach of this warranty shall be a material breach of each and every contract between Buyer and Seller.
Y. General Provisions
Any cause of action arising from this agreement, or breach of it, must be commenced within one year after the cause of action occurs. Simco-Ion reserves the right to correct any stenographical or clerical errors in any of the writings issued by it. The terms and conditions of sale and any description on the face of Simco-Ion's writings constitute a complete and exclusive statement of the terms and conditions of the sale of the goods by Simco-Ion to Buyer unless amended in writing between Buyer and Simco-Ion. Buyer may not assign any rights to, or delegate any performance owed under the agreement without the written consent of Simco-Ion.
Seller warrants that no law, rule, or ordinance of the United States, a state, or any other government agency has been violated in supplying the goods or services ordered herein.