These terms and conditions govern the sale of Products (“PRODUCTS”) by VIEW THRU TECHNOLOGIES, INC (“SELLER”). These terms and conditions (“AGREEMENT”) take precedence over BUYER’S supplemental or conflicting terms and conditions to which notice of objection is hereby given. Acceptance by BUYER is limited to and conditioned upon BUYER’S assent to these terms and conditions. Neither SELLER’S commencement of performance or delivery shall be deemed or constituted as acceptance of BUYER’S supplemental or conflicting terms and conditions. BUYER’S acceptance of the PRODUCTS and/or Services from SELLER shall be deemed to constitute acceptance of the terms and conditions contained herein. THESE TERMS AND CONDITIONS MAY ONLY BE WAIVED OR MODIFIED IN A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER.
All QUOTATIONS are provided in accordance with these TERMS OF SALE. Unless previously withdrawn, SELLER’S QUOTATION is open for acceptance within the period stated therein or when no period is stated, within 30 days from the date of SELLER’S QUOTATION.
All ORDERS placed by BUYER are subject to acceptance by SELLER. ORDERS may not be cancelled or rescheduled without SELLER’S written consent. All ORDERS must include delivery dates, quantities and complete description of PRODUCTS being purchased.
Unless otherwise provided on the face hereof, delivery shall be made F.O.B. SELLER’S plant. Regardless of the method of delivery, however, risk of loss shall pass to BUYER upon SELLER’S delivery to a carrier. Any delivery dates shown are approximate only and Seller shall have no liability for any delays in delivery.
5. Changes, Reschedules and Cancellations:
BUYER may request to modify the designs or specifications for the items sold hereunder as well as the quantities and delivery dates thereof, or may request to cancel all or part of this order, however, no such requested modification or cancellation shall become part of the contract between BUYER and SELLER unless accepted by SELLER in a written amendment to this AGREEMENT. Acceptance of any such requested modification or cancellation shall be at SELLER’S discretion, and shall be upon such terms and conditions as SELLER may require.
Payment shall be made by BUYER net 30 days from the date of invoice of the items purchased hereunder. Any claims by BUYER for omissions or shortages in a shipment shall be waived unless SELLER receives notice, thereof within 30 days after BUYER’S receipt of the shipment. Terms of payment shall be as specified in the QUOTATION and, unless otherwise agreed, payment shall be made within 30 days from the date of invoice. No discounts shall be provided for payments earlier than 30 days. Late payments shall accrue interest at the rate of one and one half percent (1.5%) per month, or the highest interest rate allowable by applicable law, whichever is lower. BUYER shall pay all of SELLER’S costs and expenses (including reasonable collection agency and attorney’s fees) to enforce and preserve in the event that BUYER becomes delinquent in the payment of any sum due to SELLER, SELLER shall have the right to suspend performance under and ORDERS until such delinquency is corrected. Partial shipments made under any ORDER shall be treated as a separate transaction and payment thereof shall be made accordingly. In the even of any default by BUYER, SELLER may decline to make further shipments without in any way affecting its frights under such ORDER or any other ORDERS or agreements between SELLER and BUYER.
All goods sold are warranted to be free from defects in materials and workmanship, and only if specifications are furnished to VIEW THRU TECHNOLOGIES at its facility, unless specifically requested by BUYER. After a period of 24 months of non-usage through the date such goods are sold hereunder to BUYER. In no event shall VIEW THRU TECHNOLOGIES be liable for any incidental, special, indirect, or consequential damages, whether resulting from non-delivery, late delivery, defects in or inability to use the goods sold hereunder.
8. Inspection and Limitation of Remedy:
BUYER shall inspect and test the products for damage, defect, or shortage immediately upon receipt and provide VIEW THRU TECHNOLOGIES written notice of such damage, defect, or shortage within 30 days of receipt. VIEW THRU TECHNOLOGIES’ liability and BUYER’S remedy shall be limited to replacement of defective or nonconforming products without additional charge or, at VIEW THRU TECHNOLOGIES’ option, to refund of purchase price upon return of the products to VIEW THRU TECHNOLOGIES.
Unless otherwise indicated on the face hereof, all prices and charges are exclusive of excise, sales, use property, occupational or like taxes which may be imposed by any taxing authority upon the manufacture, sale, or delivery of the items sold hereunder. If any such taxes must be paid by SELLER or if SELLER is liable for the collection of such tax, the amount thereof shall be in addition to the amounts for the items sold. BUYER agrees to pay all such taxes or to reimburse SELLER therefore upon receipt of its invoice. If BUYER claims exemption from any sales, use or other tax imposed by any taxing authority, BUYER shall save SELLER harmless from and against any such tax, together with any interest or penalties thereon which may be assessed if the items are held to be taxable.
10. Force Majeure:
SELLER does not assume the risk of and shall not be liable for delay or failure to perform any of SELLER’S obligations by reason of circumstances beyond the reasonable control of SELLER (hereinafter ‘Events of Force Majeure’). Events of Force Majeure shall include without limitation, accidents, acts of God, strikes or labor disputes, acts, laws, rules or regulations of any government or government agency, fires, floods, delays or failures in delivery of carriers or suppliers, shortages of materials and any other cause beyond SELLER’S control.
11. Limited Warranty:
11.1 SERVICE Provided for BUYER Owned Material
It is recognized that even after employing all the scientific methods known to SELLER, hazards still remain in providing process services. Therefore, SELLER’S liability shall not exceed twice the amount of SELLER’S charges for services performed on any material (first to reimburse for the charges and second to compensate in the amount of the charges), except by written agreement signed by an officer of SELLER. BUYER, by contracting for services, agrees to accept the limits of liability as expressed in this statement to the exclusion of any and all provisions regarding orders and / or other documents. If BUYER desires other terms of liability to be in force and effect, the other terms and of liability must be agreed to in writing and signed by an officer of seller. In such event, a different charge for SELLER’S services, reflecting the higher risk to SELLER, shall be agreed to by the BUYER and SELLER. No claims will be allowed for shrinkage, expansion, deformity, rupture and / or any other physical change of the material resulting from services provided by SELLER, except by prior written agreement. Whenever BUYER supplies material to SELLER with detailed instructions specifying the service process, SERLLER’S responsibility shall end with the carrying out of those instructions. Failure by the buyer to specify plainly and correctly the kind of material to be processed (serviced), shall cause an extra charge to be made to cover any additional expenses incurred as a result thereof, but shall not change the limitation of liability stated above.
11.2 Warranty Liability Limitations
Except for the express warranty stated above, SELLER disclaims all warranties, express or implied, including without limitation, the implied warranties of merchantability and fitness for a particular purpose and disclaims all warranties for trade or samples previously supplied. The stated warranty and remedy provided are in lieu of other possible liability and damages against SELLER and in no event shall SELLER be liable for special, indirect or consequential damages resulting from the breach of this warranty or any other provision of these terms and conditions, the quotation, the purchase order and / or any agreement between BUYER and SELLER or otherwise arising out of or in connection with the services and / or goods or their sale, delivery, distribution, installation, maintenance, operation, service, performance, or use, including, without limitation, any loss of use, lost revenues, lost profits, damage to associated equipment or to facilities, lost data, costs of substituted goods, equipment facilities or services, and any similar or dissimilar losses, costs or damages, whether based on warranty, contract, strict liability or negligence. In no event shall the liability of SELLER exceed two (2) times the charges for providing services for BUYER owned material, or the actual cost of correcting defects in manufactured products, whichever is less.
12. Indemnity by BUYER:
BUYER shall indemnify and hold SELLER harmless from and against any and all damages, claims, or expenses (including reasonable attorney’s fees) arising out of or relating to improper selection, application, or abuse of the serviced materials and / or goods. Should the serviced materials and / or manufactured goods be used in or with any nuclear installation or activity, or aircraft and any associated activity, or any transportation installation and any associated activity, or medical application and any associated activity whatsoever, BUYER will indemnify SELLER and hold SELLER harmless from any liability or damage whatsoever including, without limitation, attorney’s fees, arising out of the use of the thermally processed materials and / or manufactured goods in such a manner.
13. Entire Agreement / Governing Law:
The terms and conditions set forth herein together with any amendments, modifications and any different terms or conditions expressly accepted by SELLER in writing, shall constitute the entire AGREEMENT concerning the items sold, and there are no oral or other representations or agreements which pertain thereto. This AGREEMENT shall be governed in all respects by the law of the State of Pennsylvania. No actions arising out of the sale of the items sold hereunder or this AGREEMENT may be brought by either party more than two (2) years after the cause of action accrues.