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Sales Terms and Conditions
1. SCOPE The terms and conditions of the same contained herein apply to all contracts of sale entered into by Noel (the “seller”). These terms & conditions supersede and replace any term & conditions attached to Buyer’s purchase order & Seller's acceptance is expressly conditional upon Buyer’s unqualified acceptance of these terms & conditions. No waiver, alterations, or modifications of any of the provisions hereof shall be binding unless in writing & signed by a duly authorized representative of the seller. In the event of a conflict between the terms & conditions of this acknowledgement and the quotation, the terms & conditions of the acknowledgement shall govern.
2. ACCEPTANCE OF ORDERS All purchase orders of proposed orders must be approved by the Seller.
3. PRICES Seller’s do not include transportation or crating charges, or sales, use, excise, value added tax, personal property or any other taxes. In addition to the prices specified herein, the amount of any transportation charges or any present or future sales, use, excise, value added tax, personal property, or other similar taxes applicable to the sale or use of the products sold here under shall be paid by the Buyer, or in lieu of an applicable tax. Buyer shall provide Seller with a tax exemption certificate acceptable to the applicable taxing authority. All process are firm & not subject to audit or price revision.
4. PAYMENT AND SECURITY Buyer grants Seller a purchase money security interest in all articles under this agreement until such time as full purchase price is paid. Payment terms for all Noel’s products and service contracts are net 30 days, from date of invoice. Shipments, deliveries and performance of work shall at all times be subject to approval of Sellers credit department and Seller may at any time, decline to make any shipments or deliveries or to perform any work except upon receipt of payment or upon terms or conditions or security satisfactory to Seller. In the even payment is not made within (30) days from date of invoice, Buyer agrees to pay a service charge of two percent (2%) per month as a reasonable charge for overdue payments plus all collection charges.
5. DELIVERIES & FACILITIES FOR INSTALLATION Shipping dates are approximate only & subject to change. Unless otherwise specified in this agreement delivery shall be F.O.B. manufacturing site, and the method of shipment and carrier shall be selected by the Seller unless the Buyer shall have specified in writing at least ten (10) days prior to the scheduled delivery. The Buyer shall notify the Seller in writing at least ten (10) days prior to any scheduled shipment if the Buyer wishes insurance for this shipment. The cost of all insurance for the products shall be an additional expense for the Buyer. If not such notice is received, the shipment shall be made with no insurance and at the minimum valuation. Buyer will accept delivery and will, at Buyers expense, provide facilities for installation, which comply in all respects with Seller’s instructions, all governmental laws, codes, regulations, orders and the like.
6. EXCUSEABLE DELAY Seller shall not be liable for delays in delivery or failure to manufacture or deliver products due to acts of God, acts of the Buyer, acts of Civil or Military authorities, fires, strikes, floods, epidemics, war, riots, delays in transportation, or other causes beyond the sellers reasonable control including but not limited to the inability to obtain necessary labor, material, component parts or manufacturing facilities.
7. DEFAULT, CANCELLATION, RESCHEDULING DEFAULT: In the event of (1) Breach by Buyer of any agreement, term or condition set forth herein (2) Breach by Buyer of any representation or warranty made by Buyer in connection with this transaction or, (3) Default by Buyer in the payment of any indebtedness due here under. Seller may not unilaterally decline to make further shipments without in any way affecting it’s rights under this agreement and may exercise all rights and remedies available to it by law or in equity. If despite any such breach or default by Buyer, Seller elects to continue to make shipments, Seller’s actions shall not constitute a waiver of any such breach or default by Buyer or in any way affect Seller’s rights and remedies arising because of any such breach or default.
8. CANCELLATION Buyer may unilaterally cancel this agreement upon written notice to Seller and upon payment or cancellation charges as follows: (1) If notice is given of more than thirty (30) days of the scheduled shipment or work performance schedule eighty percent (80%) of the purchase price as stated on the purchase order is due to payable is given. (2) If notice of more than thirty (30) days, but less than sixty (60) of the scheduled shipment or scheduled work sixty percent (60%) is due and payable. Buyer may reschedule shipment of systems or work schedules up to sixty (60) days if written request is made prior to sixty (60) days of scheduled shipment or work.
9. PACKAGING Seller will provide commercial or special packing at Buyer’s expense.
10. DESIGNS, SPECIFICATIONS, MATERIAL FURNISHED BY BUYER Seller assumes no responsibility for performance of products, manufactured to Buyer’s design or specifications, nor for defects in raw materials, parts, or sub-assemblies furnished by Buyer or it’s agents.
11. LIMITATION OF LIABILITY Seller’s liability on any claim of any kind, including negligence, for loss or damages arising out of, connected with, or resulting from this agreement or from the performance or breach hereof, or from the manufacture, sales delivery, resale, repair or use of any product or services covered by or furnished under this agreement, shall in no case, exceed the price allocable to the product or service or part which gives rise to the claim. In the event, Seller fails to manufacture or deliver products other than the standard products which appear in Seller’s catalog. Seller’s exclusive liability and Buyer’s exclusive remedy shall be release, of Buyer, from the obligation to pay the applicable purchase price. In no even whatsoever, shall Seller be liable for incidental, consequential or special damages.
12. ASSIGNMENT Except as herein expressly provided to the contrary, the provisions of the agreement are for the benefit of the parties to this agreement and not for the benefit of any other party. Any attempt to assignment of this agreement, or of any rights arising hereunder by the Buyer without the written consent of the Seller shall be void and of no effect whatsoever.
13. DATA In the event data is supplied by the Seller, it shall be conclusively presumed to pertain to products, components or processes developed at the Seller’s private expense, and in which the Seller possesses proprietary intent, and no rights in such data or in any inventions patents or copyrights related thereto shall pass to the Buyer. Correspondingly, if data is furnished by Buyer, no rights therein will pass to Seller: provided, however, that Seller may copy and use such data to the extent necessary to finish the products or service called for hereunder.
14. INVALIDITY OF PROVISIONS If any, all, or any portion of one or more of the terms and conditions of this agreement shall be declared invalid by any court of law, such part of such term or terms shall be considered deleted from this agreement, while their remaining portion shall be unaffected and shall remain in full force and effect.
15. DISPUTES Any dispute which arises under this agreement which is not resolved by the parties within ninety (90) days after the original written notice of dispute shall thereafter be referred to the American Arbitration Association, for adjuducation in accordance with its rules then existing and the decision of the arbitrators shall be binding upon the parties. Each party shall bear its own costs and expenses in any such arbitration proceeding. This agreement shall be governed and construed in accordance with the laws of the state of California.
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