TERMS, CONDITIONS, & WARRANTIES
Acceptance – Nutfield Technology, (“NT”) offers for sale the articles listed on the face hereof (the “Articles”) on the express condition that Customer agrees to accept and be bound by the terms and conditions of the Agreement. Acceptance by Customer may be evidenced by a) written or oral acceptance followed within thirty (30) days by Customer’s purchase order, b) acceptance of delivery by the customer and/or payment by Customer for the products delivered. Acceptance by the Customer in the foregoing manner shall constitute acceptance of this Agreement and the terms thereof. Prior dealings, usages of the trade and verbal agreements not reduced to writing and signed by NT, to the extent they attempt to alter this Agreement, shall not be binding on NT.
Payment/Security Interest – Unless otherwise agreed to in writing, Customer shall pay the purchase price for the Articles shipped under this Agreement upon receipt of the Articles. Payment for Articles and Services will be based on the terms stated on the quote with all balances owed to be due no later than thirty (30) days from the Invoice date unless otherwise agreed to in writing. The price shown does not include any provision for taxes or other governmental charges upon the sale, shipment or use of the Articles which NT is required to pay or collect from Customer, any such tax or charge, except those based on NT’s net income, shall be paid by Customer to NT at the time of purchase price is paid unless Customer furnishes NT with exemption certificates acceptable to the appropriate taxing authority. If, however, customer should fail to pay when due any amount due, NT, in addition to any other rights, has the right to repossess such Articles. Customer hereby grants to NT a security interest in the Articles to secure full payment therefore. Customer agrees, upon the request of NT, to execute and deliver to NT a financing statement and/or other documents evidencing such security interest in a form satisfactory for filing with the appropriate government authorities. Customer shall pay an additional interest and service charge in the amount of one and one-half percent (1.5%) of the unpaid balance per month (or portion thereof), or if less, the highest interest rate permitted by applicable law. Customer shall not withhold or set off from any amounts due to NT, any amounts claimed to be owed by NT to Customer for any reason whatsoever. Title to all Articles sold by NT to Customer shall pass from NT to Customer when such Articles are delivered by NT to the carrier for shipment to Customer, however, if Customer should fail to pay when due any amount Customer owes to NT on account of such Articles, NT shall have, in addition to any other rights of NT, the right (without liability of NT) to repossess such Articles or to require Customer to effect (at Customer’s expense) return delivery of such Articles to NT. Visa or MasterCard payments are required for all purchases made from our on-line store, and will be accepted as a form of payment on customer accounts that have been granted credit terms within 10 business days of the invoice date. Credit card payments made later than 10 days after the invoice date will be subject to a 3% Service Charge.
Terms of Shipment/Excusable Delays – All Articles will be shipped F.O.B. NT’s facility. In the absence of specific instructions NT will select the carrier but the carrier will not be construed as an agent of NT. Shipping dates are approximate. At Customer’s option NT will provide “all risk” transit insurance coverage (“Transit Insurance”), which will begin when the Articles are tendered by NT to the carrier and will terminate upon Customer’s receipt of the Articles. NT shall not be liable for any loss, damage, or delay affecting fabrication or delivery caused by fires, strikes, periods of national emergency or war, differences with employers, accidents, acts of God, or other cause beyond the control of NT. If Customer does not take advantage of the Transit Insurance option, all risk of damage to Articles sold by NT to Customer shall be assumed by Customer upon NT’s delivery of such Articles to the carrier for shipment to Customer. Any and all claims by Customer for damage, loss or delays in transit shall be made by Customer against the carrier (with notice thereof to NT) and NT shall have no responsibility or obligations with respect to any such damage, loss or delay.
Software License/Confidential Information – Each item of Software, including any subsequent updates or enhancements, provided hereunder is furnished to Customer or Supplier under a non-transferable, non-exclusive license for use by customer or supplier on a single system. All copies of the software, in whole or in part, are the property of NT. The Software is proprietary and confidential to NT and Customer or Supplier agrees not to provide, disclose or make available any NT Software, or part thereof, to any third party without the prior written consent of NT. Customer or Supplier agrees to maintain in confidence, and except as provided herein, not to disclose, reproduce or copy any software, materials or documents provided to Customer, which are marked Confidential or Proprietary. This obligation shall survive the expiration or termination of this Agreement for whatever reason and shall be binding on Customer’s or Supplier’s successors and assigns.
Limited Warranty – NT warrants to the Customer that the Articles furnished hereunder are free from defects in workmanship and materials for twelve (12) months after shipment unless otherwise specified in a specific contract. NT’s sole obligation under this warranty shall be to repair or replace or service, at its option, within the warranty period, any parts and/or Articles which, upon NT’s examination, are determined to be defective. Defective parts or Articles are to be returned to NT’s place of shipment. The above warranties do not apply (i) to defects or failure of Articles or parts caused by accident, alteration, abuse, misuse, corrosion or improper installation or operation (ii) if alterations or modifications are made by Customer in any way so as, in NT’s judgment, to affect the Article’s reliability or (iii) if the installation is not performed pursuant to NT’s printed instructions. Authorization to return Articles purchased from NT must be obtained by Customer. Credit may be granted, less an appropriate restocking charge, depending on the reason for the return and the condition of the Articles. Returns should always be carefully packed and sent freight prepaid. Unless otherwise agreed, return shipment freight and duty charges shall be borne by Customer. Customer shall bear all charges for freight and handling of Articles returned which are not defective. Collect shipments will not be accepted.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NT MAKES NO WARRANTIES TO CUSTOMER, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Infringement – Customer will indemnify and hold NT harmless against all damages, cost, expenses or attorney’s fees arising from claims of infringement of patents, designs, copyrights or trademarks with respect to all Articles manufactured or assembled either in whole or in part to Customer’s specifications. NT further reserves the right to cancel any order for Articles the manufacture, sale and/or use of which, in the opinion of NT, would infringe upon any patent, design, copyright or trademark. NT will hold Customer harmless against any rightful claim of any third person by way of infringement of any United States Patent by the Articles which are not either, in whole or in part, manufactured or assembled to Customer’s specifications, provided that the foregoing undertaking of NT shall not apply unless NT shall have been notified as soon as practicable by Customer of the charge or suit alleging such infringement and shall have given the opportunity to take over the defense thereof; and provided, further, that such undertaking shall not apply if the alleged infringement results from use of the Articles in combination with equipment which is not part of the Articles under circumstances such that infringement would not have resulted from use of the Articles other than in combination with such equipment. In no event shall NT be obligated to pay any amount pursuant to the Paragraph in excess of the amount that NT received from Customer for the infringing Article. Except as in the clause provided, NT makes no warranty that the Articles will be delivered free of the rightful claim of any third party by way of infringement or the like.
Rescheduling or Cancellation by Customer – In the event Customer should cancel any order of any Articles, at any time after acceptance of such order by NT and prior to NT’s delivery of such Articles to the carrier, Customer shall be obligated to pay NT liquidated damages in accordance with the following schedule (with the number of days determined from the date of cancellation to the scheduled date of delivery):
61+ days from scheduled delivery date = 30% of sell price
31 – 60 days from scheduled delivery date = 70% of sell price
30 days or less from scheduled due date = 100% of sell price
In addition to such liquidated damages, Customer shall also be obligated to pay NT the full amount of any quantity discounts obtained by Customer with respect to other Articles which were attributed to the Articles included in the canceled order. NT will back bill Customer for any such amounts. This schedule is corporate policy for standard Articles and may be subject to a different cancellation schedule for a specific product or circumstances. Said schedules for specific products will supersede the schedule contained herein. Any delivery delay or rescheduling requests by Customer will also be subject to a service charge in accordance with the above schedule of charges (based on the number of days between the Customer’s request and the scheduled date of delivery) unless NT and Customer shall agree otherwise in writing. Any such written agreement must include the following: (i) Customer’s agreement to pay upon the (rescheduled or delayed) delivery of the Articles, NT’s prices in effect at the time of such delivery; and (ii) Customer’s agreement to pay to NT the amount of costs and damages (including lost profits) incurred by NT in connection with such delay or rescheduling. Payment of all damages, back bills, and service charges attributable to cancellations by or delivery delays or rescheduling requested by Customer shall be due thirty (30) days after the date of NT’s invoice therefore. An Article may not be canceled or rescheduled after shipment and all sales from our on line store are final.
Cancellation by NT – For pre-purchased hourly contractor work, unless specifically prohibited by the Supplier’s Terms and Conditions, NT reserves the right to receive a refund of un-used pre-purchased hours after either 6 months of inactivity, or upon cancellation of the issued contract by either the Supplier or NT.
Limitation of Remedies and Liability – The express remedies provided herein are Customer’s sole remedies for breach of any and all warranties and for NT’s liability of any kind, whether in contract or in tort or otherwise arising from the products and services provided solely by NT hereunder. In no event shall NT’s liability exceed the total charges paid, the net purchase price or the charges payable for services, for one (1) year. In no event shall NT be liable for any special incidental, indirect or consequential damages or for the loss or profit, revenue, or data even if NT shall have been advise of the possibility of such potential loss or damage.
Modification – This agreement can only be modified by a written agreement duly signed by persons authorized to sign agreements on behalf of the Customer and of NT.
No Waiver – No failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver or preclude further exercise thereof.
Severability – If any part of this Agreement shall be adjudicated by any court of competent jurisdiction to be invalid, such judgment will not affect or nullify the remainder of the Agreement but the effect thereof will be confined to the part immediately involved in the controversy adjudged.
Export – Any export of products by Customer is subject to applicable U.S. export Regulations and will be Customer’s responsibility.
Governing Law – This Agreement shall be governed and construed pursuant to the laws of the State of New Hampshire.
NT is an Equal Opportunity Employer.
CUSTOMER or SUPPLIER ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT AND UNDERSTANDS AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. CUSTOMER or SUPPLIER FURTHER AGREES THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE MUTUAL UNDERSTANDING OF THE PARTIES AND THAT THIS AGREEMENT SUPERSEDES AND CANCELS ALL PREVIOUS WRITTEN AND ORAL AGREEMENTS AND COMMUNICATIONS RELATING TO THIS AGREEMENT.