HYPERTRONICS CORPORATION
16 Brent Drive, Hudson, MA 01749-2978
Terms and Conditions of Sale
Sole agreement and acceptance: Except as provided in the terms of the “Notices” paragraph below, the terms and conditions set forth herein contain the sole, entire and exclusive agreement between Hypertronics and Buyer in this transaction and supersede all prior discussions, proposals, negotiations, representations, and agreements; except as expressly provided herein any additional or conflicting terms, whether or not material, shall not, in any manner, govern the relationship between Hypertronics and Buyer. Hypertronics objects to and shall not be bound to any terms or conditions not set forth herein, including any additional or different terms on Buyer's purchase order, acknowledgment, shipping documents, or otherwise which shall be accepted for billing purposes only, and any inconsistencies or differences therein with the provisions hereof shall be null and void. Shipment pursuant to Buyer's order containing different or additional terms does not constitute acceptance of such terms, and Hypertronics will not be bound by the laws of any land regarding its ability to provide commodities, technology, software or support in the event an export license is required and is rejected by the U.S. Government. ANY WAIVER, MODIFICATION, OR AMENDMENT OF THESE TERMS AND CONDITIONS SHALL ONLY BE EFFECTIVE AGAINST HYPERTRONICS ONLY IF SUCH WAIVER, MODIFICATION, OR AMENDMENT IS CONTAINED IN A WRITTEN INSTRUMENT DULY EXECUTED BY HYPERTRONICS.
Acceptance: All orders are subject to acceptance by Hypertronics. All orders must be at least one thousand dollars ($1000.00). This minimum will be applied as $500.00 per line item with the order total to equal $1000.00. Minimum Order Quantities are applicable to all products and line items and will be applied appropriately.
Price and payment: All orders shall be priced in accordance with Hypertronics' price quotation and confirmed by
Hypertronics’ Order Acknowledgement. All prices are valid for the quantity quoted and unless otherwise indicated on the quotation, assume a single shipment for the same quantity quoted. Orders received requesting multiple shipments against a single quoted quantity will either be re-quoted at the requested ship quantities or be charged a Split shipments fee of $260.00 per effected line (whichever is greater) after the initial shipment. The terms of payment for all shipments hereunder shall be net cash thirty (30) days from date of invoice, unless otherwise indicated on the face hereof. Past due invoices shall be subject to a finance charge of 1.5% per month or the maximum rate allowed by law, whichever is less. If at any time in Hypertronics' opinion, the financial responsibility of Buyer becomes impaired or unsatisfactory to Hypertronics, or inadequate to meet the obligations hereunder, the terms of payment may, at Hypertronics' option, be revised or withdrawn, and Hypertronics may require cash or other satisfactory security before making further shipments to Buyer. Acceptance by Hypertronics of less than full payment shall not be a waiver of any of Hypertronics' rights. In addition to any other legal remedy, if Buyer fails to fulfill the terms of payment, Hypertronics may defer further delivery of goods hereunder or may, at its option, cancel all further delivery of goods to Buyer. In the event Hypertronics is required to commence collection action to recover unpaid invoices of goods sold and delivered, Hypertronics shall be entitled to interest on the unpaid balance at the highest legal rate permitted from the due date of invoice, attorney's fees, and costs of suit.
Delays in transportation shall not extend term of payment. All prices are subject to adjustment should the change in the gold price vary more than $50.00 per ounce from the price on the date of quotation. Such increases or decreases will be invoiced automatically without notice. Hypertronics reserves the right to renegotiate prices on that portion of an order scheduled for shipment more than six months from the order entry dates, unless Hypertronics specifically agrees to fixed prices beyond six months. Unless otherwise state herein, all tools required to produce the goods sold will remain the property of Hypertronics.
Taxes: All prices are quoted exclusive of any tax, fee, duty, assessment or charge, unless specifically stated and if paid by Hypertronics, shall be added to the price or prices set forth herein. Any taxes, where applicable, will be billed as separate items unless Buyer provides Hypertronics with properly executed tax exemption certificate.
Shipments: Unless otherwise specified, boxing and packing for domestic shipment are included in the quoted price. When special domestic or export packing is specified involving greater expense than customarily supplied, a charge may be made to cover such extra expense. When ordering, state clearly the method of shipment. Unless otherwise specified, we normally use the best, least expensive surface transportation. Reasonable care is exercised in packing our products for shipment and we assume no responsibility for delay, breakage, or damage after having made delivery in good order to the carrier. All claims for breakage and damage should first be made to the carrier, but we will be glad to render all possible assistance in securing satisfactory adjustment of such claims.
Delivery: Shipment dates are estimates only, are subject to production limitations and factory schedules, and hence are not guaranteed. In no event shall Hypertronics have any liability, consequential or otherwise, as a result of Hypertronics' delay or failure to deliver product for any reason. All sales are EX Works, shipping point. Lacking shipment directions for logistics from Buyer, Hypertronics will use its discretion in choice of carrier and will prepay freight and bill the cost to Buyer. Hypertronics reserves the right to make partial shipments unless advised by Buyer and to be paid on the terms hereof for such deliveries. Hypertronics reserves the right to allocate inventories and production. Each order shall constitute an independent transaction and payment therefore shall be due accordingly. If Buyer is in default at any time under any order with Hypertronics or Hypertronics is dissatisfied with Buyer's financial condition. Hypertronics shall have the right, without prejudice to any other of its rights, of suspending deliveries until such default or condition is remedied.
Title and risk of Loss: Title and risk of loss of the goods shall pass to the Buyer upon delivery of goods to carrier at shipping point. Hypertronics is under no obligation to insure shipments unless specifically requested by Buyer and then only at Buyer's expense and valuation.
Allocation, etc.: Hypertronics shall have the right to curtail deliveries or allocate its supply of materials among all of its customers in any manner which in its sole discretion, and Hypertronics shall not be responsible in any manner for losses or damages which Buyer may incur as a result of any such, curtailment, or allocation by Hypertronics. Hypertronics shall not be required to remedy any goods not so delivered.
Limited Warranty: Hypertronics warrants only that the goods at the time of shipment furnished shall meet the specifications stated herein or attached hereto. Any technical advice given by Hypertronics in reference to the use of its products is given gratis and without any warranty whatsoever as to advice given or results obtained. THE WARRANTY GIVEN IN THIS PARAGRAPH IS IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. Any model or sample shown to Buyer was merely illustrative and was not a warranty that the goods would conform to the sample. No agent, employee, or representative of Hypertronics has any authority to bind Hypertronics to any warranty concerning the goods sold hereunder other than that set forth in these terms and conditions, and unless such is specifically included within these terms and conditions, it shall not be enforceable by Buyer. This warranty extends only to Buyer and does not extend to purchasers or users of Buyer's products.
Indemnification: Buyer agrees to indemnify and defend Hypertronics against any claim or litigation, or to pay or reimburse any judgment and all loss and expense costs (including reasonable attorney fees) incurred in connection with any claim or litigation which asserts or is based upon any alleged design defect in Hypertronics' products to the extent that the Buyer provided design information or related parts or components to Hypertronics for its products.
Exclusive Remedy of Buyer: Hypertronics' liability and Buyer's EXCLUSIVE REMEDY is expressly limited, at Hypertronics' option, to either the repair of defective goods or the replacement thereof with conforming goods at the shipping point, or credit for the net unit billing price, but such repair, replacement or credit shall be made only if:
a) Claims for shortage, subject to the terms of the “Allocation” paragraph above , or defects must be made within fifteen (15) days after the receipt of goods.
b) Claims for defective goods are made by the buyer within six months after the receipt of goods.
c) Buyer must, after obtaining RMA authorization from Hypertronics, return such goods to Hypertronics plant, freight prepaid for inspection and/or repair (Material returned without specific authorization from Hypertronics will not be received or credited), and
d) Hypertronics' inspection determines that the goods were at the time of shipment defective within the terms of this warranty. Hypertronics shall not be liable for any material converted to forms other than originally shipped by Hypertronics. Returned material which is damaged due to improper Buyer handling or packaging will not be accepted and will be deemed property of Buyer.
Limitation of liability: The remedies of Buyer set forth herein are exclusive. Hypertronics assumes no liability except as expressly provided in these terms and conditions, and in no event shall Hypertronics be liable for any consequential, incidental, special or indirect damages, arising out of or in connection with this agreement, whether arising in contract, in tort, under any warranty or otherwise, and whether or not based on any negligent act or omission or any other basis. Buyer assumes all risk, liability, and damage resulting from the use of the goods, whether used singularly, or in combination with other goods, or technical advice furnished, or of specification changes.
Certification of material goods: Should Buyer request certification of materials or goods after sale, Hypertronics reserves the right to quote additional charges for such request. Unless otherwise included under these terms and conditions, no certification is given concerning either the material or goods sold hereunder.
Patent infringement: Hypertronics reserves the right to discontinue deliveries of any material, the manufacture, sale or use of which in Hypertronics' opinion would involve patent infringement. Buyer shall indemnify and hold harmless Hypertronics, its successors and assigns and affiliates against and from any and all damages, claims, and judgments for damages and costs arising out of any suit alleging infringement of any U.S. or foreign patent or trademark by the goods supplied by Hypertronics under this order made in accordance with any design and/or specification furnished by Buyer to Hypertronics; and Buyer shall, if Hypertronics desires, defend Hypertronics, at Buyer's expense in any such suits for alleged infringement.
No Intellectual Property Licenses: Hypertronics retains ownership of all designs, inventions and other intellectual property rights in all goods sold to Buyer, regardless of any contribution by Buyer, and is not providing Buyer with any license thereto, expressed or implied, unless specifically identified in these terms of sale.
Cancellation: Hypertronics may cancel the Agreement formed by these terms and conditions at any time in the event that Buyer shall fail to perform or observe any term or condition hereof by giving Buyer written notice of cancellation. Cancellation hereunder shall not prevent Hypertronics from pursuing any other remedy available to Hypertronics by law or from seeking all damages to which Hypertronics may be entitled. Buyer may only cancel an order for product that has a confirmed ship date outside of Hypertronics Standard Lead Time and upon prior written notice and upon payment to Hypertronics for reasonable and proper cancellation costs which shall not be less than 20% of the contract price for items canceled. Requests for cancellation within Hypertronics Standard Lead Time will not be accepted. Buyer will be responsible to pay for and accept delivery of all orders scheduled to ship within Hypertronics Standard Lead Time or that have been shipped.
Assignment and Applicable Law: This Agreement shall extend to and be binding upon the parties hereto, their successors and assigns, provided, however, that Buyer may not assign this Agreement without the written consent of Hypertronics and any such assignment without consent shall be void. This contract is to be governed by and construed in accordance with the laws of Massachusetts (other than conflicts of laws provisions).
Notices: All notices hereunder shall be deemed given if delivered in writing personally or sent by certified mail or facsimile to Buyer or Hypertronics at the addresses set forth on the front of this form. Any notice given by certified mail shall be deemed given three business days following the time such notice is deposited in a U.S.A. post office, postage prepaid.
Confidentiality: All obligations of confidentiality owed to Hypertronics or its affiliates by Buyer with respect to any materials or information furnished to Buyer subject to such obligations shall remain in full force and effect and nothing herein shall affect such obligations.
Quantity: Hypertronics may deliver, and Buyer will accept delivery of, a greater or lesser quantity not to exceed ten percent (10%) of that ordered.
Changes: No changes can be made in the goods ordered hereby without the written consent of Hypertronics. Buyer shall be allowed one shipment reschedule of up to four (4) weeks beyond the originally confirmed ship date, without penalty. Subsequent shipment reschedule requests and/or requests for shipment rescheduling within five (5) to twelve (12) weeks from the originally confirmed ship date are subject to an administrative fee of $260.00 per effected product line item. Shipment reschedule requests greater than twelve (12) weeks from the originally confirmed ship date will be treated as a Cancellation as defined in the section Cancellation.
Buyers requesting an expedited delivery date within the Standard Lead Time will be charged a $260.00 expedite delivery fee if Hypertronics is able to meet the newly requested delivery date. Hypertronics reserves the right to adjust the price, change the delivery schedule or make any other revisions in this order with respect to any such approved changes. Hypertronics reserves the right to make changes in design at any time and without incurring any obligation to provide changes on the units previously purchased, or to continue to supply obsolete items or earlier versions of changed items.
Errors subject to correction: All typographical, stenographic and arithmetical errors are subject to correction.
Verbal Purchase Orders: If verbal purchase orders are entered by Hypertronics for production and/or shipment prior to receipt of written documentation from Buyer, such orders are accepted as an accommodation to Buyer and in such instances, the sale is to be governed by the terms and conditions hereof, and no others, regardless of any written documentation subsequently furnished by Buyer.
Export-Import Controls: Buyer shall be responsible for obtaining any required authorization such as an export license, import license, exchange permit or any other required governmental authorization which may be required by regulations of the U.S. Department of Commerce, the U.S. Department of State, or the U.S. Defense Department governing the sales or transfer of certain commodities, technology, software or military products. Buyer shall not transfer or deliver goods to those destinations prohibited by U.S. law. Buyer shall restrict disclosure of all information and data furnished under this Agreement and shall ship such information and data to only those destinations which are authorized by the U.S. Government. Hypertronics shall not be liable if any authorization is delayed, denied, revoked, restricted, or not reviewed, and Buyer shall not be relieved of its obligation to pay Hypertronics in such event.