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Terms and Conditions of Product
and Service Sales.
These terms and conditions of sales which appear on all invoices are
the terms and conditions upon which Sparco Technologies, Inc. and its
U.S. subsidiaries (together "SPARCO") make all sales. SPARCO will not
accept any other terms and conditions of sale, unless Buyer and SPARCO
have executed a master contract which specifically supersedes and
replaces these terms and conditions. Acceptance of all purchase orders
is expressly made conditional upon Buyer's assent, expressed or
implied, to the terms and conditions set forth herein without
modification or addition.
1. ACCEPTANCE
Buyer's acceptance of these terms and conditions shall be indicated by
any of the following, whichever first occurs: (a) Buyer's making of an
offer to purchase Product from SPARCO; (b) Buyer's written
acknowledgment hereof; (c) Buyer's acceptance of any shipment of any
part of the items specified for delivery (the "Products"); or (d) any
other act or expression of acceptance by Buyer. SPARCO's acceptance is
expressly limited to the terms and conditions hereof in their entirety
without addition, modification or exception, and any term, condition
or proposals hereafter submitted by Buyer (whether oral or in writing)
which is inconsistent with or in addition to the terms and conditions
set forth hereon is objected to and is hereby rejected by SPARCO.
SPARCO's silence or failure to respond to any such subsequent or
different term, condition or proposal shall not be deemed to be
SPARCO's acceptance or approval thereof.
2. DELIVERY
Unless otherwise agreed in writing, delivery shall be made in
accordance with SPARCO's shipping policy in effect on the date of
shipment. For all domestic transactions, unless otherwise stated on
the front of the invoice, title to, and all risk of loss or damage
with respect to the Products shall pass to Buyer upon delivery by
SPARCO to the carrier or Buyer's representative at SPARCO's warehouse
or plant. For all international transactions, the Product shall be
sold on a delivered, insurance paid, duty and international freight
unpaid basis. SPARCO assumes no responsibility for charges attendant
to Customs clearance in the country of delivery, customs duty, VAT or
any other charges or taxes within the country designated for delivery
by the Buyer. Title and risk of loss shall pass to the Buyer upon
delivery to the port designated by the Buyer and prior to Customs
clearance. Delivery is subject to the payment provisions set forth
herein and to SPARCO's receipt from Buyer of all necessary information
and documentation from Buyer including all import certificates,
exemption and/or resale certificates, licenses and other documents as
may be required from Buyer for export of the Product. Buyer shall
promptly notify SPARCO, in no event later than five (5) business days
after delivery, of any claimed shortages or rejection as to any
delivery. Such notice shall be in writing and shall be reasonably
detailed, stating the grounds for any such rejection. Failure to give
any such notice within such time shall be deemed an acceptance in full
of any such delivery. SPARCO shall not be liable for any shipment
delays beyond the reasonable control of SPARCO which affect SPARCO or
any of SPARCO's suppliers, including, but not limited to, delays
caused by unavailability or shortages of Products from SPARCO's
suppliers; natural disasters, acts of war; acts or omissions of Buyer;
fire, strike, riot, or governmental interference; unavailability or
shortage of materials, labor, fuel or power through normal commercial
channels at customary and reasonable rate s; failure or destruction of
plant or equipment arising from any cause whatsoever; or transport
failures.
3. PRICE AND PAYMENT
Buyer shall bear all applicable federal, state, municipal and other
government taxes (such as sales, use and similar taxes), as well as
import or customs duties, license fees and similar charges, however
designated or levied on the sale of the Products (or the delivery
thereof) or measured by the purchase price paid for the Products. (SPARCO's
prices set forth on the front side of the invoice do not include such
taxes, fees and charges.) Exemption certificates must be presented
prior to shipment if they are to be honored. Unless otherwise
specified, payment terms are COD. SPARCO, at its discretion, may
require reasonable advance assurances of payment through irrevocable
bank letters of credit or otherwise. All unpaid invoices shall bear
interest at an amount equal to 1-1/2% of the outstanding balance per
month (or the maximum rate of interest allowed to be contracted for by
law, whichever is less), commencing upon the date payment is due.
Buyer's failure to make timely payment may result in such action as
commencement of proceedings for collection, revocation of credit,
stoppage of shipment, delay or cessation of future deliveries,
repossession of unpaid delivered goods and termination of any one or
more sales agreements. Notwithstanding any "net" payment provisions
specified on the invoice, SPARCO shall have no continuing obligation
to deliver Products on credit, and any credit approval may be
withdrawn by SPARCO at any time and without prior notice. SPARCO
retains (and Buyer grants to SPARCO by submitting a purchase order) a
security interest in the Products to secure payment in full and
compliance with all sales agreements, and Buyer agrees to execute any
additional documents necessary to perfect such security interest. In
the event the sales invoice shall be placed by SPARCO in the hands of
an attorney for the purpose of collection, with or without litigation,
or for the purpose of enforcing SPARCO's security interest in the
Products, the Buyer agrees to pay any and all costs associated with
such placement, including, without limitation, attorney's fees and
costs incurred prior to, during, or subsequent to trial, and
including, without limitation, collection, bankruptcy, or other
creditor's rights proceedings. If a sale is to occur, or the Product
is to be shipped, outside of the United States, Buyer acknowledges and
agrees that the amount due SPARCO is contracted in U.S. Dollars and
that payment in U.S. Dollars is of the essence. Any payment by Buyer
in local currency or the receipt by SPARCO of local currency as a
consequence of enforcement procedures against Buyer will be deemed an
authorization for SPARCO to use that local currency to purchase U.S.
Dollars or, if such purchase is prohibited by local law, an
authorization to purchase appropriate bonds or other instruments and
export them from the Buyer's country in order to convert the currency
into U.S. Dollars and apply the proceeds to the payment of any amounts
owed to SPARCO by Buyer. Any deficiency as a result of conversion of
payment into U.S. Dollars shall be the responsibility of Buyer.
4. PRODUCT RETURNS
Return of Products purchased hereunder, whether for stock balancing
purposes or because such Products are claimed to be defective, shall
be governed by SPARCO's Product Return policies as set forth on
SPARCO's website in effect on the date of the invoice, or as otherwise
provided by SPARCO to Buyer in writing. SPARCO reserves the right to
modify or eliminate such policies at any time. Although SPARCO's
policies may permit Buyer to return Products claimed to be defective
under certain circumstances, SPARCO makes no representations or
warranties of any kind with respect to the Products. SPARCO HEREBY
DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS
TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SPARCO WILL
NOT BE LIABLE FOR ANY DAMAGE, LOSS, COST OR EXPENSE FOR BREACH OF
WARRANTY. The right to return defective Products, as previously
described, shall constitute SPARCO's sole liability and Buyer's
exclusive remedy in connection with any claim of any kind relating to
the quality, condition or performance of any Product, whether such
claim is based upon principles of contract, warranty, negligence or
other tort, breach of any statutory duty, principles of indemnity or
contribution, the failure of any limited or exclusive remedy to
achieve its essential purpose, or otherwise. In the event SPARCO
issues a return authorization to Buyer allowing Buyer to return
Product to SPARCO, Buyer will deliver the Product to SPARCO's address
in the United States, if so required by SPARCO, and Buyer shall bear
all applicable federal, state, municipal and other government taxes
(such as sales, use and similar taxes) as well as import or customs
duties, license fees and similar charges, however designated or
levied, on any replacement Product to be shipped by SPARCO to Buyer.
5. LIMITATION OF LIABILITY
SPARCO shall not be liable under any circumstances for any special,
consequential, incidental, PUNITIVE or exemplary damages arising out
of or in any way connected with the agreement to sell Product to Buyer
or the Product, including, but not limited to, damages for lost
profits, loss of use, lost data or for any damages or sums paid by
Buyer to third parties, even if SPARCO has been advised of possibility
of such damages. The foregoing limitation of liability shall apply
whether any claim is based upon principles of contract, warranty,
negligence or other tort, breach of any statutory duty, principles of
indemnity or contribution, the failure of any limited or exclusive
remedy to achieve its essential purpose, or otherwise.
6. GENERAL
These terms and conditions shall constitute the final, complete and
exclusive agreement of the parties with respect to all sales by SPARCO
to Buyer and shall supersede all prior offers, negotiations,
understandings and agreements. Unless Buyer and SPARCO have executed a
master contract which specifically supersedes and replaces the terms
and conditions herein, it is expressly agreed that no prior or
contemporaneous agreement or understanding, whether written or oral,
shall contradict, modify, supplement or explain the terms and
conditions contained herein. No additional or different terms or
conditions, whether material or immaterial, shall become a part of any
sales agreement unless expressly accepted in writing by an authorized
officer of SPARCO in the United States. Any waiver by SPARCO of one or
more of these terms and conditions or any defaults hereunder shall not
constitute a waiver of the remaining terms and conditions or of any
future defaults hereunder. No failure or delay by either party in
exercising or enforcing any right hereunder shall operate as a waiver
thereof or preclude any other exercise or enforcement of rights
hereunder. Any provision of these terms and conditions that is
prohibited or unenforceable under the laws of the State of Texas shall
be ineffective to the extent of such prohibition or unenforceability,
without impairing or invalidating the remaining provisions of these
terms and conditions. All sales agreements shall be deemed made in,
and shall be governed by, the laws of the State of Texas. The venue
for any disputes arising out of any sales agreement shall be, at
SPARCO's sole and exclusive option, Pinellas County, Texas or the
courts with proper jurisdiction at Buyer's location. ALL SALES
TRANSACTIONS EXCLUDE THE APPLICATION OF THE 1980 UNITED NATIONS
CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF
OTHERWISE APPLICABLE.
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