|Sinclair as Seller
Terms & Conditions
1. BUYER AND SINCLAIR. As used herein, "Buyer" refers to the party who submits a Purchase Order, which is confirmed by and made subject to these Terms and Conditions. "Sinclair" means Sinclair Manufacturing Company and "Purchase Order" means the purchase order, electronic order or any other order submitted by Buyer.
2. NO OTHER TERMS AND CONDITIONS. Sinclair's commencement of the delivery of the goods and/or services ordered by Buyer and Buyer's acceptance of such deliveries shall constitute a firm contract on the terms stated in Sinclair's confirmation and these Terms and Conditions. Sinclair's confirmation of Buyer's Purchase Order is not subject to any other terms and conditions unless such terms and conditions are set forth in an agreement signed by both Sinclair and Buyer that references and specifically amends these Terms and Conditions.
3. PRICES; PAYMENT. Except as provided below in this section, prices are based on labor, freight and material costs prevailing at the time of Sinclair's confirmation. Prices are exclusive of all applicable fuel surcharges. All taxes, including sales, use, excise or any other taxes, assessments or charges imposed by federal, state, local or foreign governments on the manufacture, sale, shipment, import, export, or use of the goods (other than income taxes) shall be paid by Buyer, unless Sinclair expressly states in writing otherwise. Payment of Sinclair's invoice is due within thirty (30) days of the invoice date. Sinclair may, at its option, impose a late payment charge on any past due invoice equal to the lesser of 1.0% per month or the maximum rate allowed by law on the entire outstanding balance, until the outstanding balance is paid in full. If Sinclair deems itself insecure with Buyer's ability to pay any invoice, Sinclair reserves the right to either withhold shipments, or impose or revise Buyer's credit limits and Terms.
4. DELIVERY. Unless otherwise specified in the confirmation, all deliveries of goods are FOB Sinclair's facility. Title will pass to Buyer upon shipment from Sinclair's facility. All delivery dates are approximate and Sinclair shall not be responsible for any damage of any kind resulting from any delay. Buyer agrees to accept partial or pro rata deliveries as full performance in the event Sinclair cannot fulfill an entire order. Sinclair shall not be liable for any default or delay in performance if caused directly or indirectly, by acts of God; war; force of arms; fire; flood; the elements; riot; labor disputes; picketing or other labor controversies; sabotage; civil commotion; accidents; any governmental action, prohibition or regulation; delay in transportation facilities; shortage or breakdown of or inability to obtain or non-arrival of any labor, material or equipment used in the manufacture of the goods; failure of any party to perform any contract with Sinclair relative to the production of the goods; or from any cause whatsoever beyond Sinclair's control.
5. WARRANTY. All of the goods furnished hereunder are furnished by suppliers to Sinclair and are warranted by Sinclair only to the extent of the original warranties provided to Sinclair by the original manufacturer of the goods. Sinclair will provide all reasonable assistance to Buyer in obtaining the benefits of such warranties. No warranty is effective if (i) the goods are not stored or handled appropriately, (ii) the defect resulted from damages occurring after delivery, (iii) the defect was not reported to Sinclair within thirty (30) days after delivery, or (iv) the defect is observable at the time of delivery is not reported upon delivery. THE FOREGOING WARRANTY IS EXCLUSIVE OF AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL OR IMPLIED, INCLUDING ANY WARRANTY OF PERFORMANCE, MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE AND SUPERSEDES AND EXCLUDES ANY ORAL OR WRITTEN WARRANTIES OR REPRESENTATIONS, MADE OR IMPLIED IN ANY MANUAL, LITERATURE, ADVERTISING BROCHURE OR OTHER MATERIALS.
6. LIMITATION OF LIABILITY. SINCLAIR'S LIABILITY TO BUYER ON ANY CLAIM OF ANY KIND, INCLUDING NEGLIGENCE, WITH RESPECT TO THE GOODS OR SERVICES DELIVERED HEREUNDER, SHALL IN NO CASE EXCEED THE PURCHASE PRICE OF THE GOODS OR SERVICES OR PART THEREOF WHICH GIVES RISE TO THE CLAIM. IN NO EVENT SHALL SINCLAIR BE LIABLE TO BUYER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR AS A RESULT OF, THE SALE, DELIVERY, NON-DELIVERY, SERVICING, USE OR LOSS OF USE OF THE GOODS OR ANY PART THEREOF, OR FOR ANY CHARGES OR EXPENSES OF ANY NATURE INCURRED, EVEN THOUGH SINCLAIR MAY HAVE BEEN NEGLIGENT, AND BUYER INDEMNIFIES AND HOLDS SINCLAIR HARMLESS FROM ANY AND ALL SUCH CLAIMS OF DAMAGE BY BUYER OR OTHERS.
7. LIMITATION OF ACTIONS. Any action for any loss or damage with respect to the goods or services delivered by Sinclair hereunder must be commenced by Buyer within six months from the date of invoice.
8. INDEMNIFICATION AND WAIVER. To the maximum extent allowed by law, Buyer must defend and indemnify Sinclair, its employees, officers, directors and agents against all sums, costs, liabilities, losses, obligations, suits, actions, damages, penalties, fines, interest and other expenses (including investigation expenses and attorneys' fees) that Sinclair, its agents, officers, directors or employees may incur or be obligated to pay as a result of (i) Buyer's negligence, willful misconduct, (ii) use, ownership, modification, maintenance, transfer, transportation or disposal of the goods; (iii) any infringement or alleged infringement of the intellectual property rights of others arising from Buyer's plans, specifications (including Buyer's trademarks and brand names) or production of the goods ordered by Buyer; and (iv) Buyer's violation or alleged violation of any federal, state, county or local laws or regulation, including without limitation, the laws and regulations governing product safety, labeling, packaging and labor practices. Buyer hereby waives and releases Sinclair from all rights of contribution or indemnity to which it may otherwise be entitled.
9. CANCELLATION. After confirmation by Sinclair, Buyer's Purchase Orders may not be subject to cancellation by Buyer except with Sinclair's express written consent.
10. ADVICE AND ASSISTANCE. Upon request, Sinclair in its discretion may furnish as an accommodation to Buyer technical advice or assistance regarding the goods ordered by Buyer. Sinclair assumes no obligation or liability for the advice or assistance given or results obtained, which shall be at Buyer's sole risk.
11. BUYER'S MATERIALS. All of Buyer's tooling, goods and other property in Sinclair's possession shall be fully insured by Buyer, and Buyer releases Sinclair from all liability for loss or damage to such materials caused by Sinclair's negligence or otherwise. After one year upon completion of any order requiring the use of such materials, Sinclair may use or dispose of such materials without liability to Buyer.
12. PROPRIETARY RIGHTS. Buyer agrees it will not copy, nor permit anyone else to copy, any goods or parts thereof, or any pattern, plan, drawing, specification, instruction or depiction thereof, without written approval of Sinclair, and that it will not knowingly, directly or indirectly, violate or infringe upon or contest the validity of any patent, license or other right of Sinclair pertaining to any of said goods. Where any goods are manufactured from patterns, plans, drawings or specifications furnished by Buyer, Buyer shall indemnify Sinclair against and save Sinclair harmless from all loss, damage and expense arising out of any suit or claim against Sinclair for infringement of any patent, trademark, copyright or other right because of Sinclair's manufacture of such goods or because of the use or sale of such goods by any person.
13. SECURITY AGREEMENT; CREDIT AND COLLECTION. To secure payment of all sums due hereunder or otherwise, Sinclair shall retain a security interest in the goods delivered hereunder and this contract shall be deemed a Security Agreement under the Uniform Commercial Code. Buyer authorizes Sinclair as its attorney-in-fact to execute and file on Buyer's behalf all documents Sinclair deems necessary to perfect such security interest. Sinclair is relying upon Buyer's representation of solvency and if Sinclair at any time reasonably believes that Buyer is insolvent or that Buyer's credit is impaired, or if Buyer shall fail to make payment when due which payment is not cured within ten (10) days after receipt of notice of the same from Sinclair, Buyer shall be in material breach hereof and Sinclair may, without liability to Buyer, withhold performance hereunder, change the payment terms and/or repossess goods theretofore delivered. Title to the goods covered by this contract shall remain in Sinclair until payment in full is received. In extending any credit hereunder, Sinclair may charge Buyer finance, service or late charges in an amount not greater than allowed by law, and if Buyer fails to pay according to the terms of this contract, Sinclair may make such charges and may also collect the amount unpaid with Buyer being liable to Sinclair for all costs of collection including attorney's fees.
14. CONFIDENTIALITY. Buyer shall not use or disclose any of Sinclair's trade secrets or confidential information, whether or not designated as such, except as required in connection with the use or resale of the goods.
15. MISCELLANEOUS. The confirmation and these Terms and Conditions constitute the entire agreement between Buyer and Sinclair relating to the ordered goods or services. No modifications shall be binding upon the Sinclair unless in writing signed by Sinclair's duly authorized representative. No modification of the confirmation or these Terms and Conditions will be effected by the acknowledgment or acceptance of other shipping instruction forms or any other document containing terms and conditions at variance with or in addition to these Terms and Conditions, all such varying or additional terms being deemed invalid. No waiver by Sinclair or default by Buyer shall be deemed a waiver of any subsequent default. The invalidity, illegality, or unenforceability of any one or more provisions hereof shall in no way affect or impair the validity, legality, or enforceability of the remaining provisions hereof, which shall remain in full force and effect. This agreement shall be governed by the laws of the Commonweath of Massachusetts, without giving effect to its principles of conflicts of law.
©2013 Sinclair Manufacturing Company
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