These terms and conditions (these “Terms”) will apply to the attached purchase order (“Order”) submitted to Continental Control Systems, LLC (“CCS” or “Seller”) by the buyer designated on the Order (“Buyer” or “you”). CCS accepts and will fulfill your Order only upon the Terms appearing below, which are incorporated by reference into the Order.
1. ENTIRE AGREEMENT: Any of the terms and conditions of Buyer’s Order which are different, inconsistent with, or additional to these Terms are expressly rejected by CCS, shall not be binding on CCS, and are not applicable to the sale of the products or equipment (“Products”) covered by the Order. Buyer’s submission of an Order is deemed unconditional and unqualified acceptance by Buyer of these Terms shall be inferred and, in the absence of such notification the shipment of the Products shall be conclusively deemed to be subject to these Terms. No modification hereof shall be valid unless in writing and duly signed by a person authorized by CCS.
2. ORDERS; PRICES: All Orders must reference a specific quotation number. All prices provided in a quotation shall be valid for Orders placed pursuant to such quotation only, and may be subject to change in future quotations. Any Order that does not reference a specific quotation number shall be invoiced at CCS’s then-current pricing.
3. QUANTITY DISCOUNTS: If quantity discounts are incorporated in the Order, they are computed separately for each type of Product, and are based on and expressly conditioned on purchase of the quantity of each type and each size ordered. If Buyer decreases the quantity of Products ordered below the required discount quantity, prices for the uncancelled quantity of any Products will be adjusted upward to CCS’s standard prices.
4. TAXES: Unless otherwise stated, the prices on the Order do not include any sales, use, excise, or similar taxes that may be applicable to the Products furnished hereunder. All such taxes and charges shall be shown separately on CCS’s invoice. If Buyer is exempt from taxation, it will submit an exemption certificate to CCS upon submission of its Order.
5. PAYMENT:
(a) Standard Payment Terms – Service Charge – Unless otherwise stated in the Order, Orders will be invoiced upon shipment of Products. Unless otherwise stated in the applicable quotation, payment for all Products is due thirty (30) days net from the date of the applicable invoice. Any payment which is not received within such 30-days period or the period stated in the quotation (as applicable) shall include a service charge equal to two (2%) percent of the past due amount per month, or, if such rate shall exceed the maximum rate of interest allowed by applicable law, then at such maximum rate.
(b) Prompt Payment and Modified Terms of Payment – If Buyer fails to make payments when due for any partial shipment, or if CCS determines at any time that Buyer’s creditworthiness or future performance is impaired or unsatisfactory, CCS may condition future deliveries upon the payment of any outstanding balance or on modified payment terms which will assure prompt payment. Such terms may include payment in advance or C.O.D.
6. NON-CANCELLABLE PURCHASE ORDERS AND PRODUCTS: Buyer acknowledges that certain Products under Orders are non-cancellable and non-returnable (“NC/NR”) except pursuant to Section 9 or 10 below. All such Products are designated as NC/NR in CCS’s quotations to Buyer and will be reflected on the subject Order. Buyer agrees to take delivery of any Product so designated as NC/NR.
7. DELIVERY TERMS: Shipping rates quoted and acknowledged by CCS are approximate. CCS will use its best efforts to fill all Orders within the dates set forth in the applicable quotation, or as quoted by CCS upon receipt of an Order, however final shipping schedules shall be subject to any conditions that may prevent compliance with acknowledged delivery schedules. CCS shall not be liable for any damages of whatever kind for failure to give notice of any delay and such delay shall not constitute grounds for cancellation or termination of any Order or part of an Order.
8. PACKING: Unless otherwise specified, the prices quoted and accepted by CCS include standard CCS domestic industrial packaging. If packaging other than CCS domestic industrial packaging is required or requested by Buyer, Buyer agrees to pay any additional charge associated therewith.
9. SHIPMENT: Unless otherwise specified and agreed to by CCS, all domestic shipments will be delivered FOB CCS’s warehouse facility in Boulder, CO, and all international shipments will be delivered EXW (Ex Works Incoterm) CC’s warehouse facility in Boulder, CO. In the absence of specific instructions, CCS will select the carrier. Title and responsibility for the shipment shall pass to the Buyer when the Products are placed in custody of the common carrier. Claims against CCS for shortages must be made within ten (10) days after arrival of shipment.
10. WARRANTY:
(a) CCS warrants only to Buyer that all serial numbered Products meet Product specifications (“Specifications”) and are free of defects in materials and workmanship for a period of five (5) years from the date of delivery to Buyer (the “Warranty Period”). This limited warranty does not cover failures or defects in the Product caused by lightening, electrical surge, water damage, shock, or damage caused by improper installation of the Product or failure to follow the instructions in the Product’s installation guide. Buyer will, at its sole expense, return allegedly non-conforming Product to CCS, and if after CCS’s inspection and analysis, a Product is determined to have failures or defects which are covered by this warranty, the sole remedy provided by this limited warranty is the repair or replacement and shipment by CCS, at CCS’s expense, to Buyer.
(b) EXCEPT FOR THE EXPRESS LIMITED WARRANTY AS SPECIFICALLY PROVIDED IN THE IMMEDIATELY PRECEDING PARAGRAPH 9(a), THERE ARE NO WARRANTIES, CLAIMS, OR REPRESENTATIONS MADE BY CCS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT, INCLUDING ANY WARRANTY OF QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE.
(c) CCS makes no warranty to any distributor, customer, or user of any Product, or any Buyer product into which the Product may be incorporated, sold by Buyer. Buyer is exclusively liable for any warranties, express or implied, that Buyer offers or provides to Buyer’s distributors, customers, or users.
11. INSPECTION AND ACCEPTANCE:
(a) Rejected Goods; Notice – Buyer must notify CCS in writing within five (5) days from date of receipt of any Product that does not meet the warranties or other terms of this Agreement (each, a “Non-Conforming Product”), and/or if there is any shortage in the quantity of Product delivered. If such notice of rejection is not received by CCS, Products shall be deemed to be accepted by Buyer. If Buyer timely notifies CCS of any shortage of Products, CCS shall promptly replace any missing quantities of Product
(b) Return Policy – Products returned in accordance with Article 10 shall be shipped to CCS prepaid. If CCS determines that the rejected Products do not conform with the terms of the Order, CCS shall coordinate repair and correction of any deficiencies, or replacement at its sole option, and return conforming Products to Buyer, transportation prepaid. In the event CCS determines that the returned Products conform to the terms of the Order, CCS shall return the conforming Products to Buyer collect. Buyer agrees to pay to CCS the cost and expense of inspection and handling of such returned Products.
(c) Title to Returned Goods – Title and insurable interest in the returned Products shall remain with Buyer until such time as CCS shall determine that the Products do not conform with CCS’s warranty. (d) Return Authorization – No Product will be accepted for return or replacement without the written authorization of CCS. Upon such authorization and in accordance with instructions from CCS, the Product will be returned to CCS, shipping charges prepaid by Buyer, to the address designated by CCS.
12. INDEMNIFICATION: To the extent permitted by law, Buyer agrees that it will, upon CCS’s timely written notification and request therefor, protect, defend indemnify and hold harmless CCS, its directors, employees, agents, and any of its affiliated companies from any and all costs, claims, judgments or award of damages (collectively, “Damages”) arising out of, or in any way resulting from the Buyer’s use of the Products sold under this Order, including but not limited to any modification, re-design, re-use, sale or incorporation with or into any other product or equipment, and all such Damages shall be the absolute liability of Buyer. Buyer agrees and acknowledges that a portion of the purchase price for the Products is allocable to indemnification obligations set forth in this Section 11.
13. INTELLECTUAL PROPERTY: CCS shall retain all right, title and interest in all Product designs, specifications and other intellectual property or proprietary information incorporated into any Product. Neither Buyer nor anyone acting at its direction or under its control will reverse engineer or otherwise analyze or attempt to analyze the composition or design of the Product. CCS is and shall remain the sole and exclusive owner of all trademarks associated with the Product and Buyer is not authorized to use or alter such trademarks without the prior written consent of CCS.
14. MODIFICATIONS: Unless otherwise provided, CCS reserves the right to modify the specifications of the Products ordered by the Buyer, providing that the modification will not affect the form, fit or function of the Product.
15. BUYER CHANGES: No changes or modifications of Product Specifications, qualification or test procedures or quality control sampling methods will be accepted after acceptance of Buyer’s Order unless mutually agreed by both parties in writing.
16. GOVERNING LAWS: This Order and all rights and obligations hereunder shall be governed by the laws of the State of Colorado.
17. TERMINATION/ CANCELLATION SETTLEMENT: Orders may be terminated, cancelled or partially reduced, provided that Buyer agrees to pay CCS for completed work allocable to Buyer’s Order at the time of termination/ cancellation at the Product selling price and all costs, direct or indirect, for work in process, allocable, inventory, settlement costs resulting from the termination/ cancellation, and a reasonable profit thereon.
18. LIMITATION OF LIABILITY: CCS WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE COST OF REPAIRS, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER OR NOT BASED UPON EXPRESS WARRANTY OR IMPLIED WARRANTY (EXCEPT FOR THE OBLIGATIONS ASSUMED BY CCS UNDER THE PRODUCT WARRANTY CLAUSE), CONTRACT NEGLIGENCE OR STRICT LIABILITY ARISING IN CONNECTION WITH THE DESIGN, MANUFACTURE, SALE, USE OR REPAIR OF THE PRODUCTS. IN NO EVENT WILL CCS BE LIABLE TO BUYER FOR ANY AMOUNT IN EXCESS OF THE PURCHASE PRICE OF THE PRODUCT CLAIMED TO BE DEFECTIVE.
19. NON WAIVER: Any failure at any time of CCS to enforce any provision of these Terms shall not constitute a waiver of such provision or prejudice the right of CCS to enforce such provision at any subsequent time.
20. FORCE MAJEURE: In the event that the performance CCS’s obligations hereunder is prevented by events beyond its reasonable control, including but not limited to acts of God, regulations or acts of any governmental authority, war, civil commotion, epidemic, fire, earthquake, storm, or like catastrophe or any similar event, CCS shall be relieved of its obligation to perform hereunder, to the extent that performance of such obligation was actually prevented thereby. CCS will, as promptly as practicable, give Buyer prompt notice of the existence of a force majeure condition, and will resume satisfaction of its performance obligations as promptly as practicable when the force majeure condition no longer exists.
21. MISCELLANEOUS. All of the remedies reserved or stated in these Terms are cumulative and additional to any other or further remedies provided at law or in equity. Neither party’s failure to insist upon strict performance of any terms and conditions herein, nor its waiver of a breach of any provision hereof constitutes a waiver of any term or of any breach. The invalidity in whole or in part of any provision or condition of these Terms does not affect the validity of any other provisions or conditions.
22. SUPPLEMENTAL CLAUSES FOR EXPORT ORDERS:
(a) CURRENCY: The prices quoted herein are payable in US Dollars. All invoices are payable by Letters of Credit drawn on a U.S. bank and such letters shall include a statement that Buyer shall pay all imports, duties, excise taxes and levies of any kind due to the manufacture, sale, transportation, export or import of the products.
(b) LICENSE AND PERMIT REQUIREMENTS: (1) CCS will secure all export licenses and permits required by the United States Government. Buyer will furnish reasonable cooperation in acquiring such licenses and permits, including a certification of the ultimate destination of the products sold. The cost of obtaining such licenses shall be borne by Buyer. (2) Buyer will, at its expense, secure all import licenses and permits required by the foreign government and CCS will furnish reasonable cooperation in acquiring such licenses and permits. The delivery schedule is contingent upon securing all necessary licenses and permits. (3) Prices shall be subject to increase if delivery is delayed by more than thirty (30) days after the contract delivery date as a result of a failure to obtain a required license or permit, unless such delay is due to the fault or negligence of CCS.
(c) INCOTERMS: The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Order. The provisions of the most current version of INCOTERMS, International Chamber of Commerce Publication, are incorporated herein by reference, except to the extent that any such provisions are contrary to or inconsistent with any
23. With regard to direct and/or indirect sales to California clients, the California Proposition 65 may apply and CCS may be required to provide clear and reasonable warnings concerning the risk of exposure to chemicals known to the State of California to cause cancer or reproductive toxicity. CCS is providing appropriate warning via its website (ctlsys.com) and, if necessary, via any other way.
If applicable, the Client shall then transmit the warning message to its own customers in California without removing or altering the warning message.