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General Terms and Conditions
of Sale
The following general terms and conditions shall apply to all purchase orders received by Gerber Coburn, (GERBER), unless otherwise specifically agreed in writing by GERBER. Unless GERBER advises a customer otherwise, customer orders, verbal and/or written, are considered accepted by GERBER upon shipment of products to the customer.
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| 1. |
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GERBER reserves the right to discontinue the
manufacturing or sale of any product at any time or to alter,
modify or redesign its products. |
| 2. |
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All prices are subject to change without notice.
The price charged will be the price in effect at the time of
order entry. Should any governmental action or request prevent
Gerber from implementing any price or continuing any price
already in effect, GERBER may cancel Customer’s order or any
part thereof. |
| 3. |
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Delivery is CPT Destination customer’s facility,
plant, and title to, and all risk of loss or damage, shall
pass to customer upon GERBER's delivery of products purchased
to a common carrier at the shipping point. GERBER will prepay
shipment, and Customer will be invoiced for freight charges.
Any collect shipments shall be at GERBER's discretion. Unless
otherwise specified by customer at time of order, GERBER will
select the freight carrier. |
| 4. |
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| a) |
Payment in full is due net
thirty (30) days from date of GERBER's invoice. |
| b) |
b) GERBER reserves the right to change these
credit terms at anytime when, in GERBER's opinion, Customer's
financial condition or previous payment record so warrants. |
| c) |
c) In the event Customer shall fail to pay
any sum when due GERBER or fail to perform any other provision
of any agreement with GERBER, GERBER will not be obligated
to continue performance under any agreement with Customer
after ten (10) days from the date of written notice to
Customer unless full payment is received within such time. |
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| 5. |
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| a) |
GERBER warrants that products distributed shall be free from defects in material and workmanship for a period of ninety (90) days or five-hundred hours of use, whichever occurs sooner, effective upon shipment from GERBER's plant. |
| b) |
RETURNS: The return of any defective part(s) during the ninety (90) day warranty period shall be made only with GERBER's prior authorization. At GERBER's option and subject to inspection upon receipt by GERBER, any part(s) found to be defective or non-conforming may be replaced or the purchase price refunded. Any replaced part(s) shall become the property of GERBER. A GERBER Return Authorization Number (RA#) must be obtained from GERBER's Part Sales Department prior to the return of part(s). RA#'s are valid for a period of 30 working days. GERBER shall not be liable for defects resulting from Customer misuse or improper handling of parts. |
| c) |
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, AND THERE ARE NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. |
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| 6. |
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Gerber has a separate return policy established
on December 22, 2006. Refer to the specific Gerber RETURN
POLICY for details. |
| 7. |
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Orders for all standard products may only be revised or canceled by Customer prior to the date of loading at the place of shipment, and only with GERBER’s prior written consent. Orders for nonstandard products or custom products may only be revised or canceled by Customer prior to the commencement of production, and only with GERBER’s prior written consent. |
| 8. |
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Definition:
Any product not shown in the most recent edition of GERBER’s published sales literature and/or price lists. |
| 9. |
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| a) |
GERBER shall indemnify and hold Customer
harmless from any claims and suits for patent or copyright
infringement asserted or brought against the Customer wherein
the parts purchased without modifications is alleged to
infringe a patent or copyright, or wherein its normal use
or its use as recommended by GERBER to the customer is
alleged to constitute the infringement. No indemnity is
provided against any claim or suit for patent or copyright
infringement wherein any part is only an element in a combination
with other products not furnished by GERBER and wherein
the combination is alleged to constitute the infringement.
Further, no indemnity is provided wherein the parts are
used in other than its normal way or in a way not recommended
by GERBER. |
| b) |
If any part which is subject to this indemnity is claimed, alleged or determined to infringe a patent issued to, or a copyright registered by, or either owned by or licensed to any third party, GERBER shall have the right and option to modify that part to avoid such infringement. If, in GERBER's sole opinion, such modification cannot practicably be accomplished to avoid such infringement, GERBER shall have the right to terminate the Purchase Agreement without liability on the part of GERBER to Customer. In such event, GERBER will agree to accept return of the part by Customer and to refund to Customer the full price paid for the part. |
| c) |
Customer shall promptly notify GERBER in writing of any third party claim or suit alleging any patent or copyright infringement for which GERBER is alleged to provide indemnification. In such event, GERBER shall have the right in its sole discretion to elect to defend against or to settle any such claim or suit. Customer shall, at GERBER's request but at GERBER's expense, cooperate with GERBER and provide assistance and information with respect to any claim of patent or copyright infringement. GERBER shall have the right to select counsel, at GERBER's expense, to defend any lawsuit for patent or copyright infringement. If Customer shall also elect to be represented by its chosen counsel, Customer shall pay the fees and expense of such counsel. GERBER shall pay the full amount of any other expense of defense and also pay any damages and/or costs awarded against the Customer up to the full amount the Customer paid GERBER for the involved product. Nothing herein, express or implied, shall be interpreted or construed to create any obligation on GERBER to pay to Customer, or others, any damages consequential or otherwise, other than those set forth above. |
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| 10. |
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GERBER products, once authorized by U.S. Export Regulations
for delivery, are for use expressly by the customer. By entering into an
agreement to purchase products, the customer therefore confirms to GERBER
that products shall not be transmitted, relocated, re-exported, or otherwise
disposed of, either directly or indirectly, except as authorized by current
U.S. law and export regulations. |
| 11. |
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The remedies set forth in Section 5 (Warranty) and Section
9 (Patents and Copyrights) are in lieu of all other remedies, arising out
of or in connection with this purchase of spare parts. LIABILITY FOR ALL
DAMAGES SHALL NOT EXCEED THE LESSER OF THE DIRECT DAMAGES OR THE CHARGES
PAID TO GERBER BY CUSTOMER FOR THE SPARE PARTS. Gerber shall not be liable
for any lost profits, or for any claim or demand against Customer by any
third party, except as specified in these Standard terms and Conditions.
Customer agrees to defend indemnify and save harmless Gerber, Gerber's directors,
officers and employees from any and all liabilities to, claims by, actions
by, damages to, whether arising in tort or otherwise, by any person arising
out of or in connection with the use, operation or ownership of the products.
Gerber's liability for damages of any nature shall not exceed the purchase
price of the product(s) from which the liability arose. IN NO EVENT SHALL
GERBER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL AND/OR SPECIAL DAMAGES EVEN
IF GERBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. |
| 12. |
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GERBER shall not be liable for delay, non-delivery, or the
performance of any other term or condition due to causes beyond GERBER's
reasonable control, including but not limited to acts of God, natural or
human-caused disasters such as flood and fire, a public enemy, war (declared
or undeclared), civil disturbance, actions of or failures by third parties
including suppliers, labor disputes, compliance with governmental regulations
or other authority, transit interruptions, or the inability of freight forwarders
or carriers to complete shipments in accordance with GERBER instructions.. |
| 13. |
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| a) |
These Terms and Conditions shall be
governed and construed in accordance with the laws of the State of
Connecticut. |
| b) |
Sole jurisdiction and venue of any kind and all
claims and lawsuits relating to these Terms and Conditions or in any
way to any agreement incorporating these Standard Terms and Conditions
of Sale shall reside in Hartford County, Connecticut, U.S.A |
| c) |
These Terms and Conditions, including all attachments
and written policies and procedures of GERBER incorporated by reference
herein, shall constitute the entire understanding between the parties
with respect to the subject and shall supersede all previous proposals
of sale, communications, representations, understandings, and agreements,
either oral or written, between the parties with respect to the subject
matter |
| d) |
If any of the provisions of these Terms and Conditions
are deemed or adjudged invalid under any applicable statute or rule
of law, those provisions shall be deemed omitted and all other terms
and provisions shall continue in full force and effect. |
| e) |
These Terms and Conditions shall not be assigned
by Customer and any attempt by Customer to assign shall be deemed
void. |
| f) |
The waiver on any one occasion by either party to
these Terms and Conditions of any breach by the other party shall
not be deemed a waiver of any subsequent breach of the Agreement. |
| g) |
No amendment or modification of these Terms and
Conditions shall be valid or binding upon either party unless made
in writing and signed, respectively, by an authorized representative
of Customer and by an Authorized GERBER Representative. |
| h) |
These terms and conditions become binding upon acceptance
of the Customer order by GERBER. These terms constitute the entire
agreement between the parties with respect to the subject matter thereof,
and shall prevail, notwithstanding any different, conflicting, or
additional terms and conditions, which may accompany any order submitted
to GERBER by a customer. |
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