ATHENA CONTROLS, INC.
STANDARD TERMS AND CONDITIONS OF SALE
EXCLUSIVE AND ENTIRE: The following Standard Terms and Conditions are intended by the parties to govern all the purchases of equipment, parts or service from Seller, and together with the specifications provided or embodied herewith, represent the entire understanding of the parties without exception. All other terms and conditions are specifically rejected, and by proceeding with the transaction in any manner, both Seller and Buyer agree that these Standard Terms and Conditions shall control. The price charged by Seller is based on these Standard Terms and Conditions.
GENERAL CONDITIONS: All orders are subject to acceptance by the Seller. Keyboard entry and clerical errors are subject to correction. No oral or subsequent modification of any of the following general provisions or of any term or condition of any order shall be binding unless agreed to in writing by the Seller and Buyer. Seller reserves the right to make changes at any time, without notice in prices, specifications and models in the interest of advancing design technologies. The Seller will continue to service obsolete models only as parts remain available, and such service is considered by the Seller to be practical. Sensors with Precious Metal content are subject to price adjustment based on order placement timing and will be adjusted based on the current NYMEX pricing levels for the metals involved.
PAYMENT TERMS: All sales are in US Dollars. Buyers with approved credit may order on open account (net 30-day payment terms). Shipments will be suspended on delinquent accounts unless satisfactory arrangements have been made and accepted in writing. A “Late Payment” charge or service charge of 2% per month will be made on monies past due. Seller accepts company checks, major credit cards (V, MC, AX) bank wires, ACH transfers and Cash in Advance. Seller does not accept COD orders.
FREIGHT TERMS: Seller default freight terms are FOB Origin, Freight Collect. We will ship pre-paid and add to your invoice at our choice of carrier’s normal quoted rate. We will ship freight collect on your account with your carrier of choice. For LTL common carrier shipments, we will ship collect on your choice of carrier. International shipments are strictly quoted Ex Works (EXW) and Buyer bears all costs bringing goods to destination, including duties, fees and taxes. Seller reserves the right to charge a small handling fee to cover extraordinary administrative, packaging or shipping costs. This fee will be quoted before shipment.
WARRANTY: Temperature Controls, Power Controls and Sensors are warranted to be free from defects of material and workmanship. They are sold subject to our mutual agreement that the liability of Seller is to replace and / or repair at its factory, provided the equipment is returned, transportation prepaid, within two ( 2) years of its factory ship date. Components which wear or which are damaged by misuse are not warranted. These items include temperature sensors, control points, fuses, electro-mechanical relays and triacs, Units that have been modified by a Buyer are not warranted. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER.
LIMITATION OF LIABILITY: SELLER TOTAL AGGREGATE LIABILITY (ARISING OUT OF OR IN CONNECTION WITH BUT NOT LIMITED TO ANY BREACH OF CONTRACT, NEGLIGENCE, TORT, LIQUIDATED DAMAGES, SPECIFIC PERFORMANCE, TERMINATION, CANCELLATION INCLUDING THE REPAYING OF THE CONTRACT PRICE OR PARTS THEREOF, FUNDAMENTAL BREACH, BREACH OF WARRANTIES, MISREPRESENTATION, NONPERFORMANCE, NONPAYMENT, OR ANY OTHER) WHETHER BASED IN CONTRACT, IN TORT, IN EQUITY, ON STATUE, AT LAW OR ON ANY OTHER THEORY OF LAW, SHALL NOT EXCEED THE PAID CONTRACT PRICE. THE BUYER ACKNOWLEDGES THAT THE REMEDIES PROVIDED IN THIS CONTRACT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REMEDIES AVAILABLE TO THE BUYER AT LAW, IN CONTRACT, IN TORT, IN STATUTE OR IN EQUITY OR IN ANY OTHER THEORY OF LAWS.
PATENT INDEMNITY: Seller agrees to indemnify Buyer against any proven claim and assessed liability for infringement of any United States patent arising from the manufacture or sale of any apparatus furnished by Seller to Buyer. THE FOREGOING STATES SELLER'S ENTIRE LIABILITY FOR CLAIMS OR PATENT INFRINGEMENT. Seller shall have no liability whatsoever if the claim of infringement arises out of Seller's compliance with Buyer's specifications. Seller shall have no liability whatsoever if a claim of infringement is based upon the Buyer's use of the equipment as part of a patented combination where the other elements of the combination are not supplied by Seller, or in the practice of a patented process. Where the specifications, process, design are supplied by Buyer, then Buyer agrees to indemnify Seller in like manner.
PROPRIETARY RIGHTS: Unless otherwise stated herein all design, manufacturing processes, manufacturing information, vendor sources, know-how, equipment, tooling or other hardware, software, or information (collectively referred to as "resources") acquired or utilized by the Seller to produce the finished goods, and any intellectual property rights, including but not limited to patents, copyrights and trade secrets related in any way to the resources, are and shall hereinafter remain the exclusive property of the Seller, regardless of whether such resources are created solely by the Seller, or by Buyer's collaboration with the Seller, for example, where Seller utilizes Buyer's specifications to create resources, and the Buyer shall acquire or receive no rights or title therein or thereto as a result of this purchase whether or not the order provides for Seller's delivery of technical data, drawings or other information to the Buyer in addition to the finished goods. Unless Seller's prior written consent is given, in no event shall the Buyer permit such data, drawings or information to be: (1) disclosed to any third party other than the Buyer's customer; (2) used by the Buyer or the Buyer's customer for manufacture of like or similar goods; (3) used for purposes of duplicating or reverse-engineering Seller's proprietary designs or processes; or (4) used by a party other than the Buyer or the Buyer's customer for any purpose.
TAXES: The quoted prices do not include state or local sales, duties, use, excise, VAT or similar taxes. To avoid any inconvenience, please supply us with one of the following documents:
1. A tax exemption certificate from your state or
2. A statement on your order or letterhead that your firm will pay the appropriate state use tax in accordance with the current tax laws of your state.
CANCELLATION: Any order which has been accepted by the Seller may be cancelled only the consent of the Seller which shall be given upon the Buyer’s agreement to pay Seller reasonable cancellation charges, but not less than 20% .
INSURANCE: Buyer represents that they have a program of Insurance which adequately protects their interest, and that of their employees and agents, including damage to plant, property and equipment, personal injury of any kind, directly or indirectly related in any way to the equipment, service, repair or parts supplied by Seller. Accordingly, Buyer waives any claim against Seller for the foregoing, and on behalf of its Insurance Company, any right of subrogation in connection therewith.
RETURNS: Equipment must arrive at seller in “ Like New” condition within 60 days from the invoice date. Equipment returned during this 60-day time period will be subject to a 25% restocking fee.
SEVERABLE AND INDEPENDENT PROVISION: WITHOUT LIMITING THE FOREGOING, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH, FURTHER, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED ITS ESSENTIAL PURPOSE, ALL OTHER LIMITATIONS OF LIABILITY AND EXCLUSION OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN FULL FORCE AND EFFECT. ALL SUCH PROVISIONS SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS OF THIS AGREEMENT MAY BE BROUGHT BY BUYER MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
U.S. EXPORT CONTROLS: All items furnished by Seller to Buyer in connection herewith shall at all times be subject to the export control laws and regulations of the U.S. including, but not limited to, 10 CFR Part 810 and U.S. Export Administration Regulations. Buyer agrees and gives assurance that no items, equipment, materials, service, technical data, technology, software or other technical information or assistance furnished by Seller, or any good or product resulting there from, shall be exported or re-exported by Buyer or its authorized transferees, if any, directly or indirectly, unless in accordance with applicable U.S. export laws and regulations. The aforesaid obligations shall survive any satisfaction, expiration, termination or discharge of any other contract obligations.
LAW: This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania. The laws govern this agreement and any claims arising hereunder will be pursued in the state court of Montgomery County, Pennsylvania or the USDC for the Eastern District of Pennsylvania. CISG (the Convention for the International Sale of Goods) is expressly rejected.