Terms + Conditions of Sale (of Goods + Service)

Terms of Sale

 

Microcom Corporation

Terms and Conditions of Sale of Goods

    

1. Certain Definitions Used in this Document. ”Seller” means Microcom
Corporation. “Purchaser” means the purchaser identified in the applicable
document in which these Standard Terms and Conditions of Sale of Goods
are referenced as being applicable, irrespective of whether the document is
an Invoice, Order Confirmation, Quotation, Statement of Work, or other
document (hereinafter, all references to such document and to the Standard
Terms and Conditions of Sale of Goods, collectively shall be made by a
reference to “this Document”). “Goods” mean the goods, equipment,
supplies and services supplied by Seller to Purchaser as described in this
Document. “Purchaser” and “Seller” include the respective heirs, executors,
personal representatives, successors and permitted assigns of each.

2. Terms are Exclusive. THIS DOCUMENT CONSTITUTES THE
COMPLETE AND FINAL AGREEMENT OF PURCHASER AND
SELLER FOR THE GOODS. THIS DOCUMENT MAY NOT BE ADDED
TO, MODIFIED OR SUPERSEDED EXCEPT IN A WRITING SIGNED
BY AN AUTHORIZED REPRESENTATIVE OF SELLER, EVEN
THOUGH OTHER TERMS MAY APPEAR ON PURCHASER’S
DOCUMENTS (ALL OF WHICH ARE HEREBY OBJECTED TO BY
SELLER WITHOUT FURTHER NOTICE). IF PURCHASER ACCEPTS
ANY PERFORMANCE BY SELLER, PURCHASER WILL BE DEEMED
TO HAVE ACCEPTED THE TERMS AND CONDITIONS OF THIS
DOCUMENT.

3. Price. Unless otherwise agreed, prices will be those set forth in Seller’s
pricing policies in effect at the time of tender of delivery. In the event
Purchaser changes its order (if and when permitted by Seller), Seller may
adjust prices accordingly. Unless otherwise stated, prices do not include
applicable quotation fees, taxes, excises, duties or other governmental
impositions including but not limited to customs fees, duties and tariffs, if
applicable, which Seller may be required to pay or collect. Any such
applicable fees, taxes, etc., will be paid by Purchaser. Further, unless
otherwise stated, all permits, licenses, or authorizations necessary for the use
of the Goods will be obtained by Purchaser at its sole expense. IF THIS
DOCUMENT IS A QUOTATION, THE TERMS AND PRICES QUOTED
(IF ANY) WILL BE FIRM ONLY IF ACCEPTED BY PURCHASER
WITHIN THIRTY (30) DAYS OF THE DATE OF THE QUOTATION.

4. Payment. Unless otherwise agreed by Seller in writing, full cash payment
is due within thirty days after invoice date. If Purchaser does not pay on
time, Seller reserves the right to charge Purchaser 1.5% per month on the
unpaid balance until paid in full. If any amount remains unpaid and Seller
attempts to collect such amount, Purchaser will pay Seller’s costs of
collection, including but not limited to attorneys’ fees and court costs.

5. Delivery. Unless otherwise agreed, the Goods will be delivered to
Purchaser F.O.B. Seller’s facility. Any specified delivery date is
approximate only. Title to the Goods will pass to Purchaser upon Seller’s
tender of delivery of the Goods. If the Goods are held by Seller subject to
receiving instructions from Purchaser, Seller may invoice the Goods and
Purchaser agrees to make payment in accordance with this Document.
Goods invoiced and held at any location by Seller will be held at Purchaser’s
risk and Seller may charge for (but is not obligated to carry) insurance and
storage. Purchaser will accept and pay for partial deliveries at contract
prices and terms. When Purchaser has declared or manifested an intention
not to accept delivery in accordance with this Document, no tender will be
necessary but Seller may, at its option, give notice to Purchaser that Seller is
ready and willing to deliver and such notice will constitute a valid tender of
delivery.

6. Excuse. Seller shall not be liable for failure to perform by reason of strikes,
fires, floods, unavoidable accidents, wars, delays in transportation,
epidemics, acts of Gods, or other causes beyond its reasonable control. In
connection with the foregoing, Purchaser acknowledges that delivery of the
Goods is contingent upon Seller’s ability to obtain supplies, raw materials
and services through its regular and usual sources and thus, if for any reason
beyond Seller’s control, Seller is not able to meet anticipated deliveries,
Seller will not be liable therefor and may postpone the delivery date(s) under
this Document for a period of time which is reasonable under all
circumstances

 

Microcom Corporation

Terms and Conditions of Sale of Goods

    

7. Warranty; Warranty Disclaimers; Assignment of Assignable
Warranties of Manufacturer; Limitation of Remedies and Liabilities.
Unless Seller explicitly provides to Purchaser a separate written warranty
document regarding the Goods, SELLER MAKES NO WARRANTIES,
EXPRESS OR IMPLIED, CONCERNING THE GOODS WHATSOEVER.
SELLER DISCLAIMS AND EXCLUDES ALL EXPRESS WARRANTIES
AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT
LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. However, to the extent
assignable, Seller shall assign to Purchaser any warranties of the
manufacturer of the Goods.
Purchaser agrees that Seller’s obligation to assign, to the extent assignable,
any manufacturer’s warranties with respect to the Goods is the sole remedy
bargained for by Purchaser IN LIEU OF ALL OTHER EXPRESS AND
IMPLIED WARRANTIES. Seller’s obligations described in this Section 7
will be PURCHASER’S SOLE AND EXCLUSIVE REMEDY FOR ANY
LIABILITY WITH RESPECT TO THE GOODS WHETHER ANY
CLAIM FOR RECOVERY IS BASED UPON OR ARISES OUT OF
THEORIES OF CONTRACT, NEGLIGENCE, TORT (INCLUDING
STRICT LIABILITY) OR OTHERWISE. IN NO EVENT WILL SELLER
BE LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT
LIMITATION, INCIDENTAL OR CONSEQUENTIAL DAMAGES.

8. Hazardous Business. Purchaser assumes all risk and liability resulting from
the Goods delivered hereunder. Unless otherwise agreed to by us in writing,
the Goods are not intended for use in connection with “safety-related”
applications within any nuclear facility or any other hazardous activity such
as aircraft, space exploration or other critical applications where failure of a
single component could cause substantial harm to persons or property. Seller
disclaims any and all liability if the Goods are used in any such applications.

9. Government Contracts. If the Goods relate to any U.S. government, state
or local government agency, Purchaser is responsible to notify Seller of all
government procurement conditions applicable thereto when Purchaser
requests Seller’s quotation. Seller will review the conditions and advise
Purchaser of Seller’s ability to comply. If any government action should
place or contain limitations on the price provided for in this Document such
that it would be illegal or against public or government policy for Seller to
charge, assess or receive the full amount or to increase such prices as
determined by this Document, then Seller shall have the option to (1)
continue to perform under this Document subject to such adjustments in
prices that Seller may deem necessary to comply with such government
action, (2) revise this Document, subject to Purchaser’s approval, in order to
most nearly accomplish the original intent of this Document, or (3)
terminate performance of the affected portions of this Document without
liability for any damages.

10. Inspections and Acceptance/Claims. Each delivery of Goods will be
inspected promptly by Purchaser for damage and defects. PURCHASER
WILL NOTIFY SELLER OF ALL CLAIMED DAMAGE OR DEFECTS
WITHIN TEN (10) DAYS OF PURCHASER’S RECEIPT OF THE
GOODS. If Purchaser fails to so inspect and notify Seller, Purchaser will be
deemed to have accepted the Goods and to have waived any damage or
defect or claim therefor. If Purchaser inspects the Goods and notifies Seller
within such period of its claim that the Goods are damaged or defective,
Seller will review Purchaser’s claim, and if valid, Purchaser and Seller will
mutually agree on the timing of curing such damage or defect. Any remedy
of Purchaser against Seller shall be barred unless notice is given in
accordance with the foregoing provision.

11. General Indemnity. Purchaser shall indemnify, defend and hold harmless
Seller from and against all losses, claims, damages, injuries, deaths or other
liabilities arising out of or relating to (i) Purchaser’s use of the Goods;
and/or (ii) Purchaser’s acts, omissions and/or performance under this
Document.

12. Information Regarding the Goods. Purchaser acknowledges that it has
received and is familiar with Seller’s and any manufacturer’s labeling and
literature concerning the Goods and will forward such information to its
employees, agents, customers.

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13. Cancellation. Seller may cancel or terminate all or part of the contract
evidenced by this Document immediately if Purchaser is materially
delinquent on any of its obligations hereunder or under any other order or
transaction with Seller; Purchaser becomes insolvent; a receiver under Title
11 U.S.C., as amended (the “Bankruptcy Code”) is appointed for or on
behalf of Purchaser, or a case under any chapter of the Bankruptcy Code is
commenced for, by or against Purchaser; Purchaser suspends or terminates
business or makes an assignment for the benefit of creditors; any guarantor
of the obligations of Purchaser dies, becomes insolvent or any case under
any chapter of the Bankruptcy Code is commenced for, by or against such
guarantor; or any event occurs, whether or not similar to the foregoing,
which in Seller’s good faith belief materially impairs the prospect of
payment or performance by Purchaser. Seller’s rights to cancel or terminate
may be exercised by Seller without liability.

14. Representation by Agent or Representatives. The terms of this Document
will govern the liability and obligations of Seller in regard to the sale of
Goods, whether the sale was procured directly by Seller or indirectly
through an authorized sales representative. No agent, employee or
representative of Seller has any authority to bind Seller to any additional or
contrary terms. Unless a term is specifically included within this Document
or is in writing signed by an executive officer of Seller, it will not be
enforceable by Purchaser or by any person claiming by or through
Purchaser.

15. Confidentiality. Purchaser will not disclose or otherwise disseminate,
directly or indirectly, any of the terms of this Document or any other
information of Seller given to or received by Purchaser or its associates or
agents, unless Purchaser received Seller’s written permission or such
information is required to be disclosed by law or becomes part of the public
domain through no fault of Purchaser, its associates or agents.

16. Miscellaneous. Orders entered on Seller’s books cannot be canceled or
deferred except with Seller’s written consent and upon terms that will
indemnify Seller against loss. If any of the provisions of this Document are
deemed invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will in no way be affected or
impaired thereby. This Document and the contractual relationship between
Seller and Purchaser shall be governed by and construed under the internal
laws of the State of Ohio (without regard to Ohio conflicts of law
principles). In the event of a dispute hereunder, Purchaser agrees to the
exclusive jurisdiction of the courts of Franklin County, Ohio. The United
Nations Convention on Contracts for the International Sale of Goods is
hereby disclaimed and shall not apply to the purchase and sale of Goods
hereunder. No right or interest in the contract arising from this Document
may be assigned by Purchaser and no delegation of any obligation owed by
Purchaser may be made without the prior written permission of Seller. The
rights and remedies of Seller herein will be cumulative and additional to any
other or further rights and remedies provided in law or equity. Waiver by
Seller of Purchaser’s performance, or inaction with respect to Purchaser’s
breach of any provision of this Document, or failure of Seller to enforce any
provision of this Document (including, without limitation, the imposition of
any finance charge), will not be deemed a waiver of future compliance
therewith or a course of performance modifying such provision, and such
provision will remain in full force and effect as written.

IN ALL CASES CLERICAL ERRORS ARE SUBJECT TO CORRECTION

Download Standard Terms and Conditions of Sale of Goods Here

 

Microcom Corporation

Terms and Conditions of Sale of Service

    

1. DEFINITIONS USED HEREIN - “Document” or “contract” means this
document, including any attached pages and the terms and conditions
contained herein. “Seller”, “us” or “we” means Microcom Corporation or
its affiliate that is the seller of Services and/or Goods to Buyer pursuant to
this Document. “Buyer” or “you” means the buyer of Services and/or
Goods pursuant to this Document. “Services” means the services, including
the goods, equipment, materials, parts and supplies (collectively, “Goods”),
supplied by us to you pursuant to this Document.

2. COMPLETE CONTRACT - This Document contains the complete and
exclusive agreement between you and us regarding the terms of the sale of
the Services (including Goods) by us to you. This Document supersedes
and replaces all previous requests, quotations, orders or agreements
concerning the Services. Any additional or different terms will not become
part of the contract or agreement for the sale of the Services and are hereby
objected to by us without further notice unless made in writing and signed
by an authorized representative of each of Seller and you.

3. PRICES - All prices quoted are estimates only, valid for not more than 30
days, and in US dollars. Total price for Services will be calculated based
on our standard service rates in effect at the time the Services are
performed. Service rates are subject to change at any time without notice.
Our standard conditions for freight charges are prepaid and are added to the
order, unless otherwise specified by us. Any applicable taxes or other
governmental impositions, including but not limited to customs fees, duties
and tariffs, if applicable, which we may be required to pay or collect also
will be added to the price and paid by you unless we receive a valid
exemption certificate. All prices and/or discounts are based on receiving an
order for the quantities specified. Any change in quantity may result in a
change in price and/or discount.

4. DELIVERY AND COMPLETION - Unless otherwise specified, delivery
points shall be the F.O.B. point specified by Seller, but liability for loss or
damage and title (if applicable) shall pass to you upon our delivery of the
Goods to a common carrier for shipment. Lead times, completion and
shipping dates are estimates only and not guaranteed.

5. SHORT, DAMAGED OR DEFECTIVE SERVICES – All claims for
damages, shortages or defects (not due to fault of carrier) shall be filed with
Seller within ten days from date of delivery. Claims arising as a result of
the fault of the carrier will be handled by Seller directly with the carrier.

6. PAYMENT - Unless otherwise agreed by Seller in writing, full cash
payment is due within thirty days after invoice date. Orders are subject to
final approval by Seller's credit department, which may require full or
partial advance payment. If Buyer delays order processing, partial payment
based on the portion of the order completed shall then be paid. Pro rata
payments shall be due as Services are performed. Storage shall be at
Buyer’s risk and charges therefor shall be paid before shipment. If Buyer
does not pay on time, Seller reserves the right to charge Buyer 1 1/2% per
month on the unpaid balance until paid. If any amount remains unpaid and
Seller attempts to collect such amount, Buyer will pay Seller’s costs of
collection, including but not limited to attorneys’ fees and court costs.

7. INTERPRETATION - RESPONSIBILITY - When plans and
specifications are involved, you are responsible to verify our interpretation
of them. When we offer substitutes on any proposal, you are responsible
for their acceptability. If we deliver to you any literature concerning the
Services you are responsible for becoming familiar with it.

8. EXCUSABLE DELAYS - No liability shall result from delay in
performance or non-performance, directly or indirectly caused by
circumstances beyond our control, which include, but are not limited to,
Acts of God, fire, explosion, flood, war, terrorism, epidemics, act of or
authorized by any government, accident, labor trouble or shortage, inability
to obtain material, equipment or transportation or acts or failure to act by
Buyer. Services so affected may be eliminated by Seller from the
transaction without liability, but the transaction shall remain otherwise
unaffected.

9. WARRANTY AND WARRANTY DISCLAIMER - Unless Seller
explicitly provides to Purchaser a separate written warranty document
regarding the Goods, we make no warranty, express or implied, concerning

 

Microcom Corporation

Terms and Conditions of Sale of Goods

    

such Goods. ALL GOODS ARE SOLD AS IS - WITH ALL FAULTS.
Notwithstanding the foregoing, to the extent we are permitted and able, we
will pass on and make available to you any warranties made by the
suppliers and manufacturers of such Goods. In addition, unless otherwise
agreed we warrant our labor and workmanship for a period of 90 days after
substantial completion of the Services. Our obligations under this warranty
are conditioned upon your notifying us of any alleged defect in our labor
and workmanship promptly after discovery and in any event not later than
90 days after substantial completion of the Services, and our satisfaction
upon inspection that the warranty has been breached. In the event of a
breach of this warranty we will correct the defective labor or workmanship
at our expense or, at our discretion, give you a credit in a reasonable amount
on account of the defect but in no event in an amount greater than the paid
price of the Services hereunder.

10. LIMITATIONS OF REMEDIES AND DAMAGES - THE
OBLIGATIONS, LIABILITY AND REMEDIES SET FORTH IN
THE PRECEDING PARAGRAPH RELATING TO THE SERVICES
(INCLUDING GOODS) ARE OUR SOLE OBLIGATIONS AND
LIABILITY AND YOUR EXCLUSIVE REMEDY. WE MAKE NO
OTHER WARRANTY, EXPRESS OR IMPLIED, AND NO
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. YOUR SOLE REMEDY FROM US IN
THE EVENT OF BREACH OF THE ABOVE WARRANTY IS
CORRECTION OF THE LABOR AND WORKMANSHIP OR
CREDIT AS SET FORTH ABOVE. SELLER AND ITS SUPPLIERS
WILL NOT, IN ANY EVENT, BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, CONSEQUENTIAL OR PENAL DAMAGES
INCURRED IN CONNECTION WITH THE SERVICES
(INCLUDING GOODS), WHETHER ANY CLAIM FOR
RECOVERY IS BASED UPON OR ARISES OUT OF THEORIES OF
CONTRACT, NEGLIGENCE, TORT (INCLUDING STRICT
LIABILITY) OR OTHERWISE, INCLUDING BUT NOT LIMITED
TO BACK CHARGES; LABOR COSTS; COSTS OF REMOVAL,
REPLACEMENT, TESTING OR INSTALLATION; LOSS OF
EFFICIENCY; LOSS OF PROFITS OR REVENUES; LOSS OF
USE; LATENESS OR DELAYS IN DELIVERY; UNAVAILABILITY
OF SERVICES; COST OF CAPITAL; COST OF SUBSTITUTE
SERVICES OR FACILITIES; DOWNTIME; OR CLAIMS FROM
YOUR CUSTOMERS OR OTHER PARTIES TO YOU OR
DIRECTLY TO US FOR SUCH DAMAGES. IN NO EVENT WILL
OUR LIABILITY TO YOU, YOUR CUSTOMERS OR TO ANY
OTHER PERSON, RELATING TO THIS DOCUMENT, ITS
PERFORMANCE OR NON-PERFORMANCE, EXCEED THE PAID
PRICE HEREUNDER.

11. HAZARDOUS BUSINESS - You assume all risk and liability resulting
from Services delivered hereunder. Unless otherwise agreed to by us in
writing, Goods sold in connection with the Services provided hereunder are
not intended for use in connection with “safety-related” applications within
any nuclear facility or any other hazardous activity such as aircraft, space
exploration or other critical applications where failure of a single
component could cause substantial harm to persons or property. We
disclaim any and all liability if standard commercial products are used in
any such applications.

12. GOVERNMENT CONTRACTS - If our Services relate to any U.S.
government, state or local government agency, you are responsible to notify
us of all government procurement conditions applicable thereto when you
request our quotation. We will review the conditions and advise you of our
ability to comply. If any government action should place or contain
limitations on the price provided for in this Document such that it would be
illegal or against public or government policy for us to charge, assess or
receive the full amount or to increase such prices as determined by this
Document, then we shall have the option to (1) continue to perform under
this Document subject to such adjustments in prices that we may deem
necessary to comply with such government action, (2) revise this
Document, subject to your approval, in order to most nearly accomplish the
original intent of this Document, or (3) terminate performance of the
affected portions of this Document without liability for any damages.

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13. EQUIPMENT AND UTILITIES - If the Services are to be performed on
your premises you will afford us the necessary utilities and secured space
for the introduction, storage and use of our Goods and equipment during
the performance of the Services.

14. CANCELLATION - Special orders may not be canceled. Other orders may
be canceled subject to a cancellation charge as determined by us.

15. ASSIGNMENT - You may not assign or transfer our contract with you
without our consent, which will not be unreasonably withheld. We may
subcontract all or any part of the Services and/or assign or transfer our
contract with you and our rights and obligations hereunder.

16. APPLICABLE LAW - This Document and any subsequent contract
referred to herein shall be governed by and construed in accordance with
the laws of the State of Ohio. In the event of a dispute hereunder, Purchaser
agrees to the exclusive jurisdiction of the courts of Franklin County, Ohio.
The United Nations Convention on Contracts for the International Sale of
Goods is hereby disclaimed and shall not apply to the purchase and sale of
Services or Goods pursuant to this Document.

17. SEVERABILITY - Invalidity of any of the terms provided herein shall not
affect the validity of any other term.

18. WAIVER - Waiver by us of your performance, or inaction with respect to
your breach of any provision of this Document, or failure of us to enforce
any provision of this Document, will not be deemed a waiver of future
compliance herewith or a course of performance modifying such provision,
and such provision will remain in full force and effect as written.

IN ALL CASES CLERICAL ERRORS ARE SUBJECT TO CORRECTION

Download Standard Terms and Conditions of Sale of Services Here

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