JADE ENGINEERED PLASTICS, INC ("Seller")
1. Shipment. Seller may make delivery in installments. If Buyer is unable to accept delivery, Seller may store the Products without responsibility for their care or maintenance at Seller's own facility or in a warehouse selected by Seller and Buyer shall pay for all handling and storage charges. Any claim for shortages or errors in shipment or delivery must be made within (10) days of receipt of the Products.
2. Purchase Price. Unless otherwise agreed to by the parties, the purchase price for the Products is payable in United State Dollars _____ (__) days after delivery to Buyer's facility. [[[insert any discount or other payment terms]]]
3. Default. Buyer shall pay the purchase price, all charges specified in the Requirements Agreement (the "Agreement")order acknowledgment ("Charges"), all costs of collection, including, without limitation, court costs and attorneys' fees and interest at the highest legal rate on any portion of the purchase price or Charges not paid as and when due. Seller may suspend performance or require cash payment, security or other assurance satisfactory to Seller when Seller believes the financial condition of Buyer or other grounds for insecurity warrant such action.
4. Drawings and Descriptive Documents. Design Data (including, but not limited to, specifications, drawings, estimates, quotations, illustrations, blueprints, bulletins, manuals, literature and other papers and documents) submitted from Buyer to Seller shall remain the property of Buyer; provided, however, that Seller may copy, reproduce, transmit and communicate such Design Data in connection with the manufacture of the Products without Buyer's consent. Design Data of the Seller and all tooling used by Seller in connection with the Products shall remain Seller's property. Seller reserves all proprietary and authorship rights in its Design Data and tooling, which may not be copied, reproduced, transmitted or communicated to any third party without Seller's consent. All Design Data shall be approved by the Buyer prior to manufacture of the Products. Seller may make discretionary changes in the Design Data and may modify the Products as long as such changes and/or modifications do not result in material changes in the specifications stated in the Design Data and do not change the purchase price.
5. Warranties. Seller warrants that all Products shall be delivered to Buyer free from all liens, encumbrances and other title defects. Seller warrants, to Buyer only, that the Products will be free from defects in material and workmanship during the twelve (12) months immediately following Buyer's receipt thereof ("Warranty Period"). This Warranty shall not apply to defects caused by disasters such as fire, flood, wind and lightening, or by the actions or inactions of any party other than Seller resulting in : (i) improper storage, installation, use or maintenance of the Products, (ii) unauthorized modifications of the Products, (iii) any other abuse or misuse of the Products. ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED OR ARISING BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE, OR OTHERWISE, ARE EXCLUDED. THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
6. Limitation of Remedies. If during the Warranty Period, Buyer discovers a defect in the material or workmanship of the Products, notifies Seller in writing within five (5) days of such discovery, and substantiates that the Products have been installed, maintained and operated in accordance with Seller's recommendations and standard industry practice, then Seller shall correct such defect at Seller's expense by repair or replacement. If Seller is unable to correct such defect after a reasonable number of attempts, Seller may, at its option, repay the purchase price less the value of any portion of the Products retained by Buyer. Repair or replacement of the Products shall not extend the Warranty Period in any manner. In no case shall Seller be liable for any special, incidental or consequential damages due to delays in the production, shipment or delivery of the Products, cost of capital, cost of any substitute Products, facilities or services, downtime, the claims of third parties including customers, and injury to property. Any legal action for breach of warranty must be commenced within twelve (12) months following receipt of the Products. THESE REMEDIES CONSTITUTE BUYER'S EXCLUSIVE REMEDIES AGAINST SELLER FOR BREACH OF WARRANTY WITH RESPECT TO THE PRODUCTS.
7. Indemnification. If the Products are manufactured in accordance with the Design Data approved by the Buyer; or if they have been modified or altered without Seller's consent; or if the Products have been misused, misapplied, damaged or used negligently, Buyer agrees to hold Seller harmless and indemnify it against any loss, cost, damage or expense, including, without limitation, costs of defense, attorneys' fees, inspectors' fees and/or testing, resulting from (a) third party claims for personal injuries or property damage, whether direct or indirect, actual or alleged, consequential or otherwise, notwithstanding any actual or alleged defects or hazard inherent in the Products or negligence of Seller, its agents, employees or subcontractors, or (b) any recall, inspection, testing, replacement or correction of the Products, whether required by governmental authority or otherwise, or (c) the violation of any law, regulation, rule, order or restriction of any governmental authority resulting from or incident to the sale, delivery, installation and/or assembly of the Products, or (d) any actual or alleged infringement of any United States or foreign patent, copyright or similar common or civil law right.
8. Force Majeure. Seller shall attempt to meet any shipment or delivery dates specified, but shall not be responsible for any delay or failure to perform its obligations hereunder if due to causes beyond its reasonable control.