Terms Of Sale
1. APPLICABILITY; CONFLICT OF TERMS. These Standard Terms & Conditions of Sale (hereafter, “Standard Terms”) shall apply to all purchase orders or any other Supply Arrangement (hereafter defined) submitted by any customer (“Buyer”) of Intoximeters, Inc. and/or its affiliates (collectively, “Seller”) regardless of whether or not they are explicitly referred to by Seller in any written communication to Buyer concerning such purchase orders or other Supply Arrangements (such as in a transmittal letter, invoice or an order acknowledgment), and regardless of Seller’s execution of any agreement or other instrument/document required by Buyer. Buyer’s acceptance of any goods shipped or services provided by Seller shall constitute acceptance of these Standard Terms, regardless of any conflicting terms or waiver language contained in any Buyer purchase order, general terms and conditions, or other Supply Arrangement. Unless otherwise agreed in writing by Seller, these Standard Terms shall supersede any terms and conditions contained in any prior purchase orders, supply agreements, nomination letters, proposals, quotations, requisitions, oral statements and/or representations, Buyer standard terms and conditions, correspondence or similar matters (collectively, “Supply Arrangements”) between the parties or their representatives. Any conflict between these Standard Terms and other Supply Arrangements shall be resolved in favor of these Standard Terms. Buyer’s acceptance of these Standard Terms shall be construed as the first to occur of (a) Buyer’s acceptance of any goods shipped or services provided by Seller, (b) Buyer’s written or electronic acceptance of these Standard Terms, or (c) Buyer’s failure to object in writing to these Standard Terms prior to shipment of any goods. If at any time (i) Buyer claims or asserts that these Standard Terms are not applicable to any Supply Arrangement between Seller and Buyer, or (ii) a determination is made by a court, arbitration panel or other legal authority that these Standard Terms do not apply to any Supply Arrangement between the parties, Seller shall have the right to immediately terminate such Supply Arrangement without liability or further obligation to Buyer. However, the failure or refusal of Seller to so terminate any Supply Arrangement shall not constitute or be deemed a waiver by Seller of the effectiveness or enforceability of these Standard Terms.
2. ACCEPTANCE OF ORDERS. All Buyer purchase orders shall be deemed accepted when Seller issues an order acknowledgment to Buyer or when Seller begins performance of the order. All orders accepted by Seller shall be governed by these Standard Terms and by any additional terms and conditions which are expressly agreed upon by authorized representatives of the parties in a fully executed Supply Arrangement. Unless otherwise agreed to in a Supply Arrangement, Seller shall have no obligation to accept any particular Buyer purchase order. Buyer acknowledges that Seller is not committing to supply the Buyer’s requirements for any goods sold to Buyer under these Standard Terms and, in the event of a shortage, Seller may allocate existing goods in its
sole discretion.
3. PRICING; PAYMENT. Unless otherwise agreed in writing by Seller, all prices quoted (whether in an applicable order or Seller’s published price list) are based on U.S Dollars F.O.B shipping point (as determined by Seller), as defined in Section 400.2-319 of the Missouri Uniform Commercial Code. Unless otherwise stated, such price quotation shall only be valid for thirty (30) days from the date of quotation. Seller reserves the right to cancel any order in the event that any legal requirement applicable to the goods mandates a price lower or higher than the price for such good set forth in the applicable order or Seller’s published price lists. Payments for all amounts due hereunder must be made to Seller in U.S. Dollars within thirty (30) days of delivery of the goods as provided herein or Seller’s invoice, whichever is earlier. Late payments on invoices, or on any unpaid balance thereof, shall bear interest at the rate of one and one-half percent (1 1/2%) per month (an effective rate of eighteen (18%) per annum) or the highest rate allowed by applicable law, whichever is less. Seller shall be entitled to recover its costs of collection of any past due invoice, including but not limited to court costs and reasonable attorneys’ fees, whether or not litigation is commenced in aid thereof and including any claim in bankruptcy. In addition, if Buyer fails to make any payment as and when due, Seller, in addition to any other rights and remedies (but not in limitation thereof), may, in its sole discretion, defer all further shipments of goods until such payments are made or may cancel such order or any pending orders from Buyer.
4. TAXES/DUTIES. Applicable sales and use taxes, and import/export duties and other charges, are in addition to any prices quoted by Seller and shall be paid by Buyer.
5. SHIPMENT; DELIVERY. Buyer will designate common carriers for the shipment of all goods (but if Buyer fails to designate a carrier, Seller shall have the right to select a carrier on Buyer’s behalf). To the extent a quoted price for any product does not expressly include shipping, handling, freight or similar charges, all costs thereof shall be paid directly by Buyer, or Seller may, at its election, prepay such charges and charge the same to Buyer. Shipping dates are approximate and not guaranteed by Seller. Seller shall not be liable for damages of any kind (including any direct, incidental, consequential or punitive damages) for failure to meet any Buyer specified delivery date, nor shall Seller be liable for any delay as a result of events or circumstances specified in Section 14 hereof. Seller shall have no responsibility to ship goods to any location other than those in the United States unless Buyer has previously secured all applicable permits and licenses and paid all fees, duties and other applicable charges in connection therewith. Unless otherwise agreed in writing by Seller, Seller reserves the right to make deliveries in installments. No delay in delivery shall relieve Buyer of its obligation to (a) pay for all installments of goods received prior to such delay, or (b)
accept remaining deliveries.
6. RISK OF LOSS; TITLE. Possession and risk of loss for all goods shall pass to Buyer upon Seller’s delivery of such goods to any carrier, common or otherwise. Title to such goods shall not pass until they have been fully paid for by Buyer. Buyer shall be deemed to have accepted the goods as delivered unless Buyer shall notify Seller of any deficiency in writing within five (5) business days of delivery.
7. CREDIT; SECURITY. Seller shall have no obligation to extend credit to Buyer unless otherwise agreed in writing by Seller. Any obligation of Seller to extend credit to Buyer is conditional upon Buyer’s timely payment of invoices, and upon the continued financial stability of Buyer. Seller reserves the right to (a) require prepayment of orders in its sole discretion, or (b) to require satisfactory security from Buyer for performance of Buyer’s obligations, regardless of any prior shipment or partial shipment on account of any order. Buyer’s refusal to make such prepayment or furnish such security will entitle Seller to suspend shipments until such prepayment is made or such security is furnished and will entitle Seller, at its option, to cancel the order or any pending order of Buyer. In such event, Buyer shall nevertheless be required to pay for such shipments or partial shipments as may have been received by Buyer prior to Seller’s cancellation of such orders or pending orders.
8. ASSERTION OF CLAIMS; RETURN OF GOODS. All claims of whatever nature, including but not limited to claims for shortage, deductions, and defective goods must be made in writing to Seller within five (5) days of Buyer’s receipt of the goods. Failure to comply with the aforesaid procedure shall constitute Buyer’s waiver of any such claim. Irrespective of Seller’s decision to prepay freight or select a carrier, Seller shall have no responsibility for, and Buyer must make all claims only against the applicable carrier or transportation company with respect to, damage or loss in transit. Any return of goods to Seller by Buyer must be authorized by an advanced writing executed by Seller and is subject to Seller’s 25% restocking fee. Irrespective of Seller’s decision to prepay freight or select a carrier, Buyer is responsible for all freight charges, both outbound and incoming. No obsolete items may be returned.
9. LIMITED WARRANTY. Seller warrants only that (a) the goods sold to Buyer conform to the specifications set forth in Seller’s published price list and/or invoices provided to Buyer hereunder (the “Specifications”), and (b) solely with respect to new Intoximeters manufactured products (“Manufactured Products”) and solely to the original user-purchaser thereof, that such Manufactured Products shall be free from defects in material and workmanship, under normal use and service conditions, for a period of twelve (12) months from original invoice date; provided, however, that the foregoing warranty in (b) above shall not apply to any (i) consumables or supplies (i.e. mouthpieces, calibration gas, ink ribbons, printer paper) sold in connection with the Manufactured Products, (ii) damage which has, in the opinion of Seller’s Authorized Sales/Service Outlet in its sole discretion, been the result of misuse, alteration, accident or abnormal conditions of operation or handling, or (iii) printer or other hardware that is not manufactured by or for Seller and which does not carry Seller’s trademark, trade name, or logo affixed to it. Seller’s sole warranty obligation for all goods and services that do not conform with the Specification or for Manufactured Products that are or become defective in material or workmanship within twelve (12) months from the date of shipment shall be limited to the replacement or repair (at Seller’s option) of the defective or non-conforming goods free of charge, or a refund of the price allocable to the defective or non-conforming goods if Seller is unable to effectively repair, replace or correct such defect or non-conformance in a reasonable time after using its reasonable efforts. Seller’s warranty obligations hereunder are contingent upon the following conditions: Seller is promptly notified of the defect or non-conformance; Buyer establishes to Seller’s satisfaction that any goods have been properly installed, maintained and operated; and upon Seller’s request, Buyer will return the defective or nonconforming goods or part thereof to Seller at Buyer’s cost, but subject to Buyer’s rights hereunder. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, AND SELLER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PRICE, NON-INFRINGEMENT OR ANY OTHER MATTER. THIS SECTION SHALL SURVIVE THE TERMINATION OR CANCELLATION OF ANY SUPPLY ARRANGEMENT BETWEEN SELLER AND BUYER.
10. EXCLUSIVE REMEDY; DISCLAIMER OF LIABILITIES. BUYER AGREES THAT SELLER’S LIABILITY SHALL BE LIMITED TO, AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY KIND HEREUNDER OR RELATING TO THE GOODS OR SERVICES DELIVERED BY SELLER SHALL BE, (A) THE REPLACEMENT OR REPAIR (AT SELLER’S OPTION) OF THE DEFECTIVE OR NON-CONFORMING GOODS FREE OF CHARGE, OR (B) A REFUND OF THE PRICE ALLOCABLE TO THE DEFECTIVE OR NON-CONFORMING GOODS IF SELLER IS UNABLE TO EFFECTIVELY REPAIR, REPLACE OR CORRECT SUCH DEFECT OR NON-CONFORMANCE IN A REASONABLE TIME AFTER USING ITS REASONABLE EFFORTS. UNDER NO CIRCUMSTANCES SHALL SELLER HAVE ANY LIABILITY WHATSOEVER TO BUYER OR ANY OTHER PERSON WHO SHALL PURCHASE FROM BUYER ANY GOODS SUPPLIED PURSUANT TO THESE STANDARD TERMS FOR INCIDENTAL, CONSEQUENTIAL (INCLUDING LOSS OF BUSINESS OR PROFITS) OR PUNITIVE DAMAGES, NOR SHALL BUYER BE ENTITLED TO OBTAIN INJUNCTIVE RELIEF AGAINST SELLER FOR ANY REASON WHATSOEVER.
11. ASSIGNMENT. Buyer shall not assign its interest in any Supply Arrangement without Seller’s prior written consent, which consent may be withheld in Seller’s sole discretion.
12. INDEMNITY. To the maximum extent allowed by law, Buyer shall reimburse, indemnify, defend and hold Seller and its employees and agents harmless from and against any claims, demands, liabilities, damages, suits, judgments, losses, costs and/or expenses (including attorneys’ fees and other expenses of any litigation) suffered and paid by Seller (collectively, “Losses”) that relate to or arise on account of (a) Buyer’s negligence, use, ownership, maintenance, transfer, transportation or disposal of any goods or services delivered by Seller or (b) Buyer’s violation or alleged violation of any federal, state, local or foreign law, rule or regulation.
13. SOFTWARE LICENSE. Ownership of software and/or firmware programs (including any source code thereto) or other proprietary information (collectively, the “Product Software”) supplied by Seller to Buyer in connection with the sale of the Seller’s goods and services to Buyer is not included in the sale of such goods and services. All Product Software shall remain Seller’s property, or the property of Seller’s software vendor. Buyer shall be deemed to receive only a limited use license hereunder, which shall be limited to the use of the Product Software in conjunction with the goods acquired by Buyer as such use is defined and limited in the operating manual for such product. Product Software licensed to Buyer shall at all times be held in confidence by Buyer. Buyer shall not translate, modify, reverse engineer, disassemble, decompile, or create derivative works based on any of the Product Software, or permit any third party to do so. The Product Software may not be copied or transferred to another party, or made commercially available in any other device.
14. INTELLECTUAL PROPERTY.
(a) If Buyer provides Seller with any specifications for goods or services to be furnished by Seller, Buyer shall reimburse, indemnify, defend and hold Seller harmless from and against any Losses concerning, arising out of or relating to any claimed or actual infringement of any patent, copyright, trade secret or other intellectual property rights of any third party respecting such goods or services.
(b) Any product or any improvement to any product (including any Product Software or source code of Seller or its software vendors) developed by Seller, and any method or process of production respecting the product or improvement thereto developed by Seller, shall be the sole property of Seller.
(c) Buyer may not use Seller’s trademarks unless Seller agrees otherwise in writing. Buyer shall not take any action that would, or fail to take any action that would prevent, any diminishment of Seller’s rights with respect to Seller’s trademarks.
(d) Except as expressly set forth herein, (i) Seller shall have no obligation to sell, assign, license, or transfer intellectual property of any kind to Buyer, and (ii) Buyer shall have no right to use any intellectual property of Seller without the express written consent of Seller, which may be withheld in Seller’s sole discretion. Seller may enforce this Section through injunction or otherwise.
15. FORCE MAJEURE. Seller shall be excused from any delay in performance under any Supply Arrangement to the extent such non-performance is caused by acts of God, war, fire, floods, windstorms or other severe weather problems, earthquakes, earth movements, or other casualty, riot, sabotage, acts of a public enemy, embargoes, labor disputes or unrest, strikes, work stoppages, acts of civil or military authorities, governmental acts, orders or regulations, or other circumstances beyond the reasonable control of Seller.
16. TERMINATION. Unless otherwise agreed to in a fully executed Supply Arrangement, Seller may terminate any Supply Arrangement, including open or continuing purchase orders: (i) on reasonable notice to Buyer, for any or no reason, or (ii) immediately, if Buyer fails to timely pay for goods delivered or services rendered, breaches any of its other obligations under any Supply Arrangement, violates or refuses to abide by or acknowledge these Standard Terms, or threatens any of the foregoing.
17. MISCELLANEOUS. Notwithstanding any Supply Arrangement to the contrary:
(a) Buyer shall have no right to (i) inspect Seller’s facilities, (ii) examine Seller’s books, records or other documents, or (iii) seek or obtain any information from Seller deemed proprietary or confidential by Seller in its sole discretion, without the express
written consent of Seller obtained in each instance, which consent may be withheld in Seller’s sole discretion.
(b) Seller shall have no obligation to comply with any agreements between Buyer and any third party unless Seller is furnished a written copy of such agreement and expressly agrees to so comply in a signed writing after Seller’s receipt of such copy.
(c) Seller shall not be required to obtain any property, liability or other type of insurance for its own account or for the account of Buyer or its property.
(d) Seller shall not be required to arbitrate any claim against Buyer or Buyer’s customers or agents, or bring or defend any such claim in any particular forum, except as provided in Section 21 of the Standard Terms.
(e) Buyer shall have no right to dictate personnel changes in Seller’s workforce, or to mandate labor union relations, affiliations or other changes to Seller’s workforce management or labor relation policies.
(f) Seller shall have the right to manufacture or have manufactured by any third party any product for Buyer in any of its facilities or the facilities of any third party without Buyer’s prior approval or consent.
(g) Buyer shall have no right to notice of any sale of stock or assets of Seller so long as the same occurs in the ordinary course of Seller’s business. In addition, no sale of Seller’s stock or assets shall give rise to any Buyer right of termination of any Supply Arrangement with Seller.
(h) Seller’s alleged or actual default with respect to any particular Supply Arrangement shall have no effect on Buyer’s obligation to perform under any other Supply Arrangement between Buyer and Seller, nor shall Buyer have any right of set off against Seller with respect to any such other Supply Arrangements.
(i) In the event of any litigation or formal dispute resolution proceeding between the parties, the prevailing party shall be entitled to recover its reasonable attorney’s fees and other expenses of dispute resolution, such as arbitrator fees, case filing fees, costs of transcription and expert witness fees.
18. WAIVER. No waiver of Buyer’s default hereunder shall be effective unless the same is in writing. Any such waiver by Seller of any breach of any term, covenant, or condition contained in these Standard Terms, or the delay, forbearance, indulgence or failure of Seller in exercising any right hereunder on account of such breach, or the partial exercise of such right, shall not be deemed a waiver of any subsequent breach of the same term or any other term, covenant or condition hereof.
19. SELLER’S REMEDIES CUMULATIVE. Each right or remedy granted to Seller hereunder shall be deemed cumulative and may be exercised from time to time.
20. SEVERABILITY. If any provision of these Standard Terms is held to be illegal, invalid or unenforceable under present or future laws, such provision shall be amended or limited only to the extent necessary to bring these Standard Terms within the requirements of said law. The invalidity of any clause, part or provision of these Standard Terms shall be restrictive in effect to said clause, part or provision and shall not be deemed to affect the validity of the remaining provisions hereof or of these Standard Terms in their entirety, the remainder of which shall remain in full force and effect.
21. LOCATION OF SALES TRANSACTIONS; GOVERNING LAW. Any sale of goods pursuant to these Standard Terms shall be deemed for all purposes to have been made in and from the State of Missouri and shall be governed by and construed in accordance with the substantive laws of the State of Missouri, which shall apply to all dealings and transactions between Buyer and Seller, without regard to its principles of conflicts of laws.
22. VENUE. Any cause of action involving goods sold pursuant to these Standard Terms shall be brought only in state or federal courts sitting in the State of Missouri and each of Buyer and Seller consent to the exclusive jurisdiction of such courts in any action between them. Any such action must be commenced within two (2) years after the cause of action has accrued.
23. TERMS APPLICABLE TO INTERNATIONAL SALES. Unless otherwise agreed in writing by Seller, any sale of goods to a location or customer outside of the United States shall be sold on and subject to Ex Works ICC INCOTERMS 2000 (the “Ex Works Terms”). Except to the extent modified by the Ex Works Terms, these Standard Terms shall continue to apply to any sale of goods or services by Seller to a location or customer outside of the United States. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any sales transactions governed by these Standard Terms. Buyer shall be responsible for timely obtaining and maintaining any required import license, exchange permit or any other governmental authorization. Seller shall not be liable if any authorization of a government is delayed, denied, revoked, restricted or not renewed, and Buyer shall not be relieved thereby of its obligations to pay Seller for the goods or any other charges which are the obligation of Buyer hereunder. All shipments to locations or customers outside of the United States shall at all times be subject to the export control laws and regulations of the United States and any amendments thereof. Buyer agrees that it shall not make any disposition of United States-origin goods purchased from Seller, by way of transshipment, re-export, diversion or otherwise, other than in and to the ultimate country of destination specified on Buyer’s order or declared as the country of ultimate destination on Seller’s invoices, except as said laws and regulations may expressly permit. Buyer agrees that in the performance of its obligations under any Supply Arrangement or these Standard Terms it will not take any action that would render the Seller liable for a violation of the U.S. Foreign Corrupt Practices Act, which prohibits the offering, giving, or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party, or instrumentality thereof in order to assist in obtaining or retaining business. Violation of this Section by Buyer shall instantly render any Supply Arrangement between Buyer and Seller null and void and shall entitle Seller to any and all remedies available to Seller at law or in equity, including but not limited to any remedies pursuant to these Standard Terms. If there is any conflict between the English and any foreign language translation of the provisions of this Agreement, the English language provisions shall control.