For purposes of this acknowledgment, China Metal Powder Inc., Inc. shall be referred to as “Seller” and the party with which Seller contracts shall be referred to as “Buyer.”
1. ACCEPTANCE: If the Terms and Conditions of this acknowledgement differ in any way from the terms and conditions of Buyer’s order, this acknowledgement will be construed as a “COUNTEROFFER” and will not be effective as an acceptance of Buyer’s Terms and Conditions which conflict herewith. The Terms and Conditions contained herein will be the complete and exclusive statement of terms of the agreement between the parties. Buyer’s acceptance of the goods sold hereunder will manifest Buyer’s assent to the Terms and Conditions hereof. No addition to or modification of any of these Terms and Conditions will be effective unless made in writing and signed by Seller.
2. CANCELLATION: Orders may be cancelled with Seller’s written consent and upon terms which will indemnify Seller against loss and upon payment to Seller of reasonable and proper cancellation charges.
3. CHANGES: Changes in the specifications must be made in writing and will be accepted by Seller upon Buyer’s acceptance of additional costs for time and material involved. Changes in shipments as scheduled on the reverse side will require written approval by Seller and Buyer’s assumption of additional costs resulting therefrom. Modification will indicate the anticipated suspension period; provided, however, that failure to so indicate shall result in suspension for a reasonable period of time.
4. FORCE MAJEURE: Seller shall not be liable for any delay in delivery, or failure to deliver, due to any cause beyond the Seller’s control, including but not limited to fires, floods, strikes, or other labor disputes, accidents to machinery, acts of sabotage, riots, precedence or priorities granted at the request or for the benefit, directly or indirectly, of the federal or any state government or any subdivision or agency thereof, delay in transportation or lack of transportation facilities, restrictions imposed by federal, state or other governmental legislation or rules or regulations thereof. If Seller in its sole discretion determines that Seller’s performance hereunder would result in a loss to Seller on this sale as computed under Seller’s normal accounting procedures because of causes beyond Seller’s control, then the Seller may terminate this agreement in whole or part without liability for any delay in the delivery of, or failure to deliver, the goods sold hereunder.
5. ERRORS: Seller reserves the right to correct clerical errors and omissions.
6. SELLING PRICE: Seller reserves the right to make temporary or permanent adjustments to the selling price for increases in costs from such items as raw materials, energy, and process gases. Buyer shall be given reasonable notice of the timing for these adjustments.
7. TERMS: All production parts are F.O.B. Seller’s plant and are net thirty (30) days from date of invoice. Invoices for tooling services due and payable upon approval of tooling proof samples. Seller reserves the right to withhold shipping production parts if invoice for tooling services has not been settled to Seller’s satisfaction in its sole discretion. Pro rata payments shall become due as shipments are made. If shipments are delayed by Buyer, payments shall become due on the date when Seller is prepared to make shipment. If the work to be performed hereunder is delayed by Buyer, payments shall be made based on the purchase price and the percentage of completion. Shipments held for Buyer shall be at the risk and expense of Buyer. If the financial condition of Buyer at any time does not, in the judgment of Seller, justify continuance of the work to be performed, Seller may require full or partial payment in advance or shall be entitled to cancel any order then outstanding and shall receive reimbursement for its reasonable and proper cancellation charges. The rights of Seller contained in this Section 6 are in addition to all rights available to Seller at law or in equity.
8. WARRANTY AND LIABILITY: Seller makes no warranty or representation, expressed or implied, by operation of law or otherwise, as to the merchantability or fitness for a particular purpose of the goods sold hereunder, Seller shall not be liable for any defect in the goods sold hereunder and Buyer releases Seller from any and all liability for negligence by Seller with respect to any activity engaged in by Seller with regard to the goods sold hereunder and from any and all liability imposed upon manufacturers or sellers of goods under section 402A of the restatement of torts, 2nd, or under any similar legal theory, Buyer acknowledges that it alone has determined that the goodS purchased hereunder will suitably meet the requirements of its intended use, it is expressly understood that any technical advice furnished by Seller with respect to the use of its goods or services is given without charge, and Seller assumes no obligation or liability for the advice given or results obtained, All such advice being given and accepted at Buyer’s risk. The sole and exclusive warranties given by Seller with respect to the goods sold hereunder are that it has title to such goods free and clear from any lien or encumbrance and that such goods shall conform to the description and specifications set forth herein. Should Seller breach either OR both of these warranties, Buyer’s only remedy and Seller’s only obligation shall be the replacement or repair by Seller of such non-conforming goods. Seller will not be liable for consequential, incidental or any damages other than repair or replacement of defective goods or refund of the purchase price paid for such defective goods, at Seller’s exclusive option. Every claim from any cause shall be limited in its remedy to seller’s warranties herein and shall be deemed waived by the Buyer unless made in writing within ninety (90) days of the receipt by Buyer of the goods to which such claim related, or, if the goods are to be stocked for resale, within ninety (90) days of the date of shipment from Buyer to Buyer’s customer, provided that all such claims must be submitted in writing to Seller within (1) one year from receipt by Buyer of the goods to which such claim relates. No legal proceedings will be brought for any breach of this contract more than one year after the accrual of the cause of action thereof.
9. TAXES AND OTHER CHARGES: Buyer will pay, or reimburse Seller if it pays, any and all taxes or tariffs or other similar charges imposed upon this contract, the goods covered hereby or the delivery or use thereof or upon any act done or document of title or instrument used in connection with the transaction, any and all taxes, tariffs or charges imposed upon or measured by the sales contemplated herein or the purchase price payable hereunder. If the sale hereunder is other than F.O.B. Seller’s plant, this acknowledgement is based upon the freight charges now in effect, in the event of an increase or decrease in applicable freight charges before the goods are shipped, such change in freight will be for Buyer’s account.
10. QUANTITIES SHIPPED: Weights and quantities shown hereon are estimated. It is understood and agreed that an “over or under allowance” for quantities shipped are made to within ten percent (10%).
11. PACKING-ROUTING: Unless this acknowledgment states otherwise, goods shall be bulk packed in accordance with good commercial practice. In the absence of specific shipping instructions from Buyer, Seller shall use its discretion in using a shipping service.
12. TITLE: Delivery of parts of components to a carrier by Seller shall constitute transfer of title, ownership, possession and property in and to the parts or components to Buyer at such point of delivery and such carrier shall thereafter be deemed to be acting for Buyer and parts or components shall thereafter be at Buyer’s risk.
13. PATENTS: Irrespective of whether the articles manufactured or supplied hereunder are being made to Buyer’s drawings or designs, Seller shall be under no liability whatsoever for patent infringement. Buyer agrees to indemnify and hold harmless Seller from and against any claim, or action upon claim, that the manufacture, use, or sale of any good manufactured or supplied hereunder infringes any patent and to pay any and all losses, damages and expenses of Seller in connection with any such claim of action. Any information, suggestions or ideas transmitted by Buyer to Seller in connection with performance hereunder are not to be regarded as secret or submitted in confidence except as maybe otherwise provided in writing signed by a duly authorized representative of Seller.
14. OVERTIME WORK: The schedule of work to be performed pursuant to this acknowledgment is based on a work week of five (5) eight (8) hour days, Monday through Friday, exclusive of holidays. In the event Buyer changes the work week to any basis other than the above or desires to extend the work or to complete the work earlier than that specified, the lump sum price(s) shall be adjusted in Seller’s discretion to reflect additional costs resulting from the change.
15. TOOLING: Since the charges made for dies and tools include only a portion of the costs and do not include the cost of administration and engineering services, the initial invoicing of such charges does not convey the right to remove dies and tools from Seller’s plant, without Seller’s consent and compensation for these additional costs. Seller will store and maintain them for Buyer’s exclusive use; provided, however, that Seller will not recognize the obligation to maintain them beyond two years from the date of last order. No standard components or adopters will be included in any agreed to removal, under any circumstance. Seller does not insure such dies and tools, and therefore recommends that Buyer provide for such insurance, as Buyer deems necessary.
16. SAMPLES: On initial orders, unless otherwise requested by Buyer, samples will be submitted for approval before proceeding with production. Parts made according to approved samples will be deemed made in compliance with the contract.
17. RESALE OF GOODS SOLD HEREUNDER: In the event of the resale of any of the goods sold hereunder, in whatever form, Buyer will include the following language in a conspicuous place in the agreement covering such resale: “Warranties by manufacturers and sellers of goods sold hereunder are limited to such written warranties as may be applicable to the individual items sold hereunder, which warranties are limited to repair or replacement of the goods or to the refund of the purchase price, at the manufacturer’s or seller’s option, within the time limit specified. Manufacturers and sellers make no warranties or representations, express or implied, by operation of law or otherwise, as to the merchantability or fitness for a particular purpose of the goods sold hereunder. Manufacturers and sellers shall not be liable for any defect in the goods sold hereunder and Buyer releases manufacturers and sellers from any and all liability for negligence with respect to any activity engaged in by manufacturer or seller with regard to the goods sold hereunder and from any and all liability imposed upon manufacturers or sellers goods under section 402A of the restatement of torts, 2nd, or under any similar legal theory. Buyer acknowledges that it alone has determined that the goods purchased hereunder will suitably meet the requirements of their intended use. Manufacturers and sellers will not be liable for consequential, incidental or any damages other than repair or replacement of defective goods OR refund of the purchase price for such defective goods at manufacturer’s or seller’s option.”
18. CREDIT: All sales are subject to the approval of Seller’s Credit Department.
19. TERMINATION: Notwithstanding anything contained in this acknowledgment or elsewhere to the contrary, Seller shall be entitled to terminate its contractual relationship with Buyer upon reasonable written notice to Buyer.
20. GOVERNING LAW: This acknowledgment, as well as the contractual relationship between Buyer and Seller contemplated by this acknowledgment, shall be governed by the internal law, and not the law of conflicts, of the State of Shenzhen.
