Terms & Conditions
GENERAL TERMS AND CONDITIONS TO ORDER CONFIRMATION AND INVOICE
THESE GENERAL TERMS AND CONDITIONS TO ORDER CONFIRMATION AND INVOICE (“TERMS AND CONDITIONS”) REPRESENT SPECIFIC AGREEMENTS AND UNDERSTANDINGS BETWEEN USMT, LLC (“USMT”) AND PURCHASER, WHICH WILL APPLY TO PRODUCTS PURCHASED BY PURCHASER FROM USMT FROM TIME TO TIME (“PRODUCTS”), UNLESS OTHERWISE EXPRESSLY AGREED TO IN WRITING BY USMT WITH RESPECT TO A PARTICULAR SALE. PURCHASES HEREUNDER MAY BE MADE ON PURCHASER’S STANDARD PURCHASE ORDER FORM (“PURCHASE ORDER”) BUT ANY TERMS AND CONDITIONS SET FORTH ON ANY PURCHASE ORDER THAT ARE IN ADDITION TO OR ARE INCONSISTENT WITH THESE TERMS AND CONDITIONS SHALL BE DEEMED STRICKEN FROM THE PURCHASE ORDER AND SHALL BE OF NO FORCE OR EFFECT. THESE TERMS AND CONDITIONS SHALL APPLY TO ANY PURCHASE ORDER WHETHER OR NOT THESE TERMS AND CONDITIONS ARE EXPRESSLY REFERENCED THEREIN. THESE TERMS AND CONDITIONS AND ANY USMT CONFIRMATION OR QUOTE SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN PURCHASER AND USMT WITH RESPECT TO THE PRODUCTS.
- PAYMENT: Unless otherwise expressly stated in writing, terms are net thirty (30) days from the date of invoice. Prices for Products are exclusive of all excise, sales, use and other taxes imposed by any federal, state, municipal or other governmental authority, and shall not include costs of freight, insurance, handling or other similar costs, all of which shall be paid by Purchaser.
- DELIVERY: Unless otherwise specified, all sales are F.O.B. USMT’s warehouse, and the time of shipment shall be the time when the Product is ready for pickup at that location by Purchaser or by a carrier for delivery to Purchaser. USMT reserves the right to make delivery in installments. Any delivery dates contained in any Purchase Order or USMT confirmation or quote are estimates only, and USMT cannot guarantee delivery on a specific date. Without in any way limiting the generality of paragraph 5 below, USMT shall not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond USMT’s reasonable control. In the event of delay due to any such cause, time for delivery shall be extended for a period equal to the duration of the delay and Purchaser shall not be entitled to refuse delivery or otherwise be relieved of any obligations as a result of the delay. If, as a result of any such cause, any scheduled delivery is delayed for a period in excess of ninety (90) days, USMT may, at its option, by written notice to Purchaser, cancel that scheduled delivery and all future deliveries without further liability or obligation of any kind.
- SHIPMENT: Unless specific instructions to the contrary are supplied by Purchaser and accepted in writing by the USMT, methods and routes of shipment will be selected by USMT but USMT will not assume any liability in connection with shipment or constitute any carrier as USMT’s agent. All shipments will be insured at Purchaser’s expense and made at the Purchaser’s risk, and Purchaser shall be responsible for making all claims with carriers, insurers, warehousemen and others for mis-delivery, non-delivery, loss, damage or delay. Risk of loss of any Products shall pass to Purchaser at the time of shipment of the Product as set forth in Paragraph 2 above. Title to any Products shall pass to Purchaser upon payment in full to USMT for such Product.
- CANCELLATIONS AND RETURNS: Orders that have been accepted may be cancelled only with USMT’s prior written consent and upon terms that will fully indemnify USMT against loss. Products are not in any event to be returned to USMT without USMT’s prior written authorization. Notwithstanding the foregoing, however, either party may terminate any Purchase Order or USMT confirmation or quote immediately if the other party becomes insolvent, fails to pay its bills as due or makes an assignment for the benefit of its creditors. Either party may also terminate any Purchase Order or USMT confirmation or quote immediately if the other party fails to perform any of its obligations hereunder. In the event of any such termination hereunder, other than due to USMT’s breach, USMT shall be entitled to the payment of prices specified on the applicable Purchase Order or USMT confirmation or quote for all Products delivered to Purchaser but not yet paid for and payment for any and all raw materials, work in process, and finished goods inventories of Products in the possession of USMT or any subcontractor(s) of USMT as of the effective date of such termination.
USMT grants Purchaser a maximum of ten (10) days after delivery of any Product to inspect such Product at Purchaser’s sole cost and expense. If Purchaser does not give USMT a written notice within such period of its rejection of such Product for defect (and the specific reasons therefor), Purchaser will be deemed to have accepted the Product. USMT shall be under no obligation to accept the return of any Products delivered to Purchaser after ten (10) days from the date received by Purchaser. If it is established to USMT’s satisfaction that the Product was not in compliance at the time of delivery with the acceptance of the order, USMT will negotiate a price reduction with Purchaser. If such a price reduction cannot be agreed upon, the Product shall be made available to USMT at the point of delivery at Purchaser’s expense. Defective Product(s) may not be returned until inspected by USMT and upon specific instructions given by USMT. Nothing in this paragraph shall affect Purchaser’s obligation to make payment within thirty (30) days of invoice date.
- WARRANTY: USMT shall assign to Purchaser the original manufacturer’s warranty, if any, for Products or components of Products, as applicable, to the extent that any such warranty is assignable. Except for the assignment to Purchaser of the original manufacturer’s warranty, if any, for Products as provided in the foregoing sentence, which shall be the exclusive warranty with respect to any Products, USMT MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED, WRITTEN OR ORAL, REGARDING INFORMATION GIVEN OR THE PRODUCTS SUPPLIED AND EXPRESSLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, REPRESENTATIONS AND CONDITIONS, INCLUDING WITHOUT LIMITATION ALL WARRANTIES AND CONDITIONS OF QUALITY, MERCHANTABILITY AND SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE TO THE EXTENT PERMITTED BY LAW.
- LIMITATION OF LIABILITY: THE PRICE ALLOCABLE TO ANY PRODUCT, AS PROVIDED FOR ON THE APPLICABLE PURCHASE ORDER OR USMT CONFIRMATION OR QUOTE, ALLEGED TO BE THE CAUSE OF ANY LOSS OR DAMAGE TO PURCHASER SHALL BE THE CEILING LIMIT ON USMT’S LIABILITY. IN NO EVENT SHALL USMT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, LOST PROFITS OR PUNITIVE DAMAGES IN CONNECTION WITH USMT’S OBLIGATIONS OR PERFORMANCE PURSUANT TO THESE TERMS AND CONDITIONS, WHETHER OR NOT RELATED TO WARRANTY OR OTHERWISE, WHETHER OR NOT FOUNDED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE.
- INDEMNIFICATION: Purchaser agrees to indemnify and hold USMT harmless from and against any and all claims, demands, obligations and liabilities, including, without limitation, those arising from the purchase, possession or use of any Products supplied by USMT or violation of local, state or federal laws, codes or regulations relating to the Product (including environmental and safety laws, codes and regulations) or loss of or operation of Product, cost of substitution for the Products purchased by Purchaser, claims of third parties, or injury to person or property, except for such claims, demands, obligations and liabilities resulting from USMT’s sole and exclusive negligence or the negligence of USMT’s employees and duly authorized agents. Anything to the contrary set forth in these Terms and Conditions or any Purchase Order notwithstanding, in no event shall USMT be obligated to defend Purchaser from any claims, actions, liabilities, losses, costs, damages or expenses resulting or claimed to result in whole or in part from any actual or alleged (i) misuse of Products by Purchaser or a user of the Products, or (ii) any action or inaction of Purchaser, its employees or agents.
- 8. INTELLECTUAL PROPERTY AND OTHER PROPRIETARY RIGHTS:
Purchaser shall defend, indemnify and hold harmless USMT from all costs, expenses, judgments and attorney’s fees arising from any claim brought by a third party alleging that USMT’s manufacture, assembly, production, use or sale of any Product (but not including any manufacturing, assembly, or production methods or techniques), the Specifications, use of any Software, or use of any Product-specific tooling supplied by Purchaser set forth in these Terms and Conditions infringes any third party intellectual property rights including, without limitation, patent rights, copyrights, trademarks, or trade secrets.
- LATE PAYMENTS: All payments not paid when due shall bear interest from the due date until received at the lesser of: (i) eighteen percent (18%) per annum; or (ii) the highest lawful rate of interest permitted at the time in the State of Connecticut (the “Default Rate”). Payments will be credited first to late payment charges and next to the unpaid balance. Purchaser shall be responsible for all collection and / or legal fees necessitated by lateness or default in payment.
- BANKRUPTCY: In the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against Purchaser, or in the event of the appointment, with or without Purchaser’s consent, of an assignee for the benefit of the creditors of Purchaser or of a receiver, then USMT shall be entitled to cancel any order confirmation.
- INCONSISTENT TERMS: These Terms and Conditions shall govern over conflicting terms on any Purchase Order.
- INDEPENDENT CONTRACTOR: The relationship between USMT and Purchaser hereunder shall be solely that of independent contractors, and nothing herein contained shall be construed as creating any other relationship.
- CHOICE OF LAW: These Terms and Conditions shall be governed by, and interpreted in accordance with, the substantive laws of the State of Connecticut without regard to its conflicts of laws and principles that would require the application of any other law.
- FORCE MAJEURE: USMT shall be excused for any failure or delay in the performance of its obligations hereunder due to fire, war, insurrection, government restrictions, government boycott or other governmental action, acts of God or the public enemy, acts of terrorism, compliance in good faith with any applicable governmental regulation or order whether or not it proves to be valid, floods, riots, strikes, labor disputes, freight embargoes or transportation delays, shortage of labor, inability to secure fuel, material, supplies, equipment or power at reasonable prices or on account of shortages thereof, unusually severe weather, or other causes beyond the control and not due to the fault of USMT.
- ENTIRE AGREEMENT: With respect to the subject matter herein, these Terms and Conditions and any USMT confirmation or quote represent the entire agreement between the parties involved and supersede all other agreements between the parties.