ORION INDUSTRIES INCORPORATED
1. PRICES. All prices published by us or quoted by our representatives
may be changed at any time without notice. Written quotations
expire automatically sixty (60) days from the date issued and
are subject to change or termination by notice during that period.
All prices are subject to adjustment on account of specifications,
quantities, shipment arrangements or other terms and conditions
which are not part of the original price quotation. Prices are
exclusive of all excise, sales, use and other taxes imposed by
any federal, state, municipal or other governmental authority,
all of which taxes shall be paid by the purchaser. The purchaser
is responsible for obtaining and providing to us any certificate
of exemption or similar document required to exempt any sale from
sales, use or similar tax liability. All prices shall be as specified
by us or, if no price has been specified, shall be our price in
effect at the time of delivery.
2. TERMS OF PAYMENT. Unless otherwise expressly stated in writing,
terms are as set forth on the reverse side hereof. We reserve
the right at any time to require full or partial payment in advance,
or to revoke any credit previously extended, if, in our judgement,
the purchaser’s financial condition does not warrant proceeding
on the terms specified. Overdue payments shall be subject to finance
charges computed at a periodic rate (to the extent permitted by
law) of 1½% per month (18% per year), plus all costs and
expenses, including reasonable attorneys’ fees, incurred
by us in collecting such overdue amounts. Amounts owed by the
purchaser with respect to which there is no dispute shall be paid
without set-off for any amounts which the purchaser may claim
are owed by us and regardless of any other controversies which
may exist.
3. DELIVERY. Unless otherwise specified, all sales are F.O.B.
our premises in Ayer, Massachusetts, and the time of delivery
shall be the time when the product is ready for pickup at that
location by the purchaser or by a carrier for delivery to the
purchaser. Without in any way limiting the generality of paragraph
10, we shall not be liable for any loss or damage resulting from
any delay in delivery or failure to deliver which is due to any
cause beyond our control, including, without limitations, acts
of nature, unavailability of supplies or sources of energy, riots,
wars, fires, floods, epidemics, lockouts, strikes and slowdowns,
delays in delivery by our suppliers, or acts or omissions of the
purchaser. In the event of delay due to any such cause, time for
delivery shall be extended for a period equal to the duration
of the delay and the purchaser shall not be entitled to refuse
delivery or otherwise be relieved of any obligations as a result
of the delay. If, as a result of any such cause, any scheduled
delivery is delayed for a period in excess of three (3) months,
we may, at our option, by written notice to the purchaser, cancel
that and all future deliveries without further liability or obligation
of any kind. Products on which delivery is delayed due to any
cause within the purchaser’s control may be placed in storage
by us at the purchaser’s risk and for its account. The purchaser
shall be liable for all costs and expenses incurred by us in holding
or storing products for the purchaser or at the purchaser’s
request.
4. SHIPMENT. Unless specific instructions to the contrary are
supplied by the purchaser, methods and routes of shipment will
be selected by us but we will not assume any liability in connection
with shipment nor constitute any carrier as our agent. All shipments
will be insured at the purchaser’s expense and made at the
purchaser’s risk, and the purchaser shall be responsible
for making all claims with carriers, insurers, warehousemen and
others for misdelivery, non-delivery, loss, damage or delay.
5. TITLE AND RISK OF LOSS. Subject to paragraph 6 and to our right
to stop delivery of products in transit, title to and risk of
loss for products shall pass to the purchaser upon the earlier
of delivery to the purchaser or to a carrier for shipment to the
purchaser.
6. SECURITY INTEREST. We reserve and the purchaser grants to us
a security interest in all products sold and all proceeds to secure
the full payment and performance by the purchaser of its liabilities
and obligations to us. The purchaser acknowledges that this document
or copies of this document may be filed with the appropriate authorities
as a financing statement and agrees to execute and deliver such
other documents as we may request in order to perfect our security
interest.
7. CANCELLATIONS AND RETURNS. Orders which have been accepted
may be cancelled only with our prior written consent and upon
terms that will fully indemnify us against loss. Products are
not in any event to be returned to us without our prior written
authorization.
8. INSTALLATION. Unless otherwise specified, we assume no obligation
to install any products sold or to place them in working order
at the purchaser’s premises.
9. SPECIFICATIONS. All products are subject to our standard tolerances
for specifications. We reserve the right to make substitutions
and modifications in the specifications of any products provided
that such substitutions or modifications do not materially affect
the performance of the products or the purpose for which they
can be used.
10. WARRANTY AND CLAIMS. We warrant solely to the purchaser that
the products will be free from defects in materials and workmanship,
when given normal, proper and intended usage, for a period of
30 days from the date of delivery. All claims for nonconforming
or defective products must be made in writing within the 30-day
warranty period and any claims not made within that period shall
be deemed waived and released. Our sole responsibility with respect
to such claims shall be at our option, to repair or replace any
product or component which we determine to be defective. IN NO
EVENT SHALL WE BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES DUE TO ANY CAUSE WHATSOEVER. OUR MAXIMUM LIABILITY ARISING
OUT OF THE SALE OF THE PRODUCTS OR THEIR USE, WHETHER BASED UPON
WARRANTY, CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE ACTUAL
PAYMENTS RECEIVED BY US IN CONNECTION WITH SUCH DEFECTIVE PRODUCTS.
OUR MAXIMUM LIABILITY FOR ANY LOSS OF OR DAMAGE TO ANY CUSTOMER
SUPPLIED MATERIALS SHALL NOT EXCEED THE ACTUAL PAYMENTS RECEIVED
BY US IN CONNECTION WITH THE PRODUCTS INTENDED TO BE PRODUCED
USING SUCH MATERIALS. No suit or action shall be brought against
us more than one year after the related cause of action has accrued.
THE FOREGOING CONSTITUTES OUR SOLE LIABILITY AND THE PURCHASER’S
SOLE REMEDY WITH RESPECT TO PRODUCTS SOLD BY US. EXCEPT AS THUS
PROVIDED, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
11. PATENTS. We assume no obligation or liability of any kind
with respect to infringements or alleged infringements of United
States or foreign patents, copyrights, trademarks or other proprietary
rights arising out of the purchaser’s purchase, use, possession,
sale or delivery of any products sold hereunder. The purchaser
shall indemnify and hold us harmless from any and all claims,
liabilities, damages or expenses resulting from infringements
or alleged infringements of United States or foreign patents,
copyrights, trademarks or other proprietary rights arising from
compliance by us with any designs or specifications provided by
the purchaser. No sale of any product shall be construed as granting
to the purchaser any license or other right in or to any patent,
copyright, trademark or other proprietary right applicable to
the product.
12. ASSIGNMENT. The purchaser shall not delegate any duties nor
assign any rights or claims under this document without our prior
written consent, and any such attempted delegation or assignment
shall be void.
13. COMPLIANCE WITH LAWS. The purchaser shall carry out the transactions
contemplated by this sale and shall otherwise deal with the products
sold in conformity with all applicable laws, rules and regulations
of all governmental authorities, including, without limitation,
the Export Administration Act, and shall obtain all permits and
licenses required in connection with the purchase, installation,
sale, shipment, export or use of any of the products.
14. GOVERNING LAW. Any contract made shall be governed by and
interpreted, construed and enforced in accordance with the laws
of Massachusetts.
15. FORCE MAJEURE. In the event that we are prevented from performing,
or are unable to perform, any of our obligations hereunder due
to any act of nature, act of God, fire, casualty, flood, war,
strike, lockout, failure of public utilities, injunction or any
act, exercise, assertion or requirement of any governmental authority,
epidemic, destruction or production facilities, riot, insurrection,
sabotage, inability to procure materials, labor, equipment, transportation
or energy sufficient to meet our needs, delay in delivery, or
any other cause beyond our reasonable control, and if we shall
have used reasonable efforts to avoid such occurrence and minimize
its duration and have given prompt written notice to purchaser,
then our failure to perform shall be excused and the time for
performance shall be extended for the period of delay or inability
to perform due to such occurrence.
16. SEVERABILITY; REMEDIES AND WAIVER. In the event that any one
or more provisions contained herein (other than the provisions
obligating the purchaser to pay us for the products) shall be
held by a court of competent jurisdiction to be invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability
of the remaining provisions contained herein shall not in any
way be affected or impaired thereby. The remedies contained herein
are cumulative and in addition to any other remedies at law or
equity. Our failure to enforce, or waiver of a breach of, any
provision contained herein shall not constitute a waiver of any
other breach or of such provision.
17. ADDITIONAL OR INCONSISTENT TERMS. Terms and conditions set
forth in any document provided by the purchaser which differ from,
conflict with or are not included in the terms and conditions
set forth in this document shall not become a part of any agreement
between us and the purchaser unless such terms and conditions
are specifically accepted by us in writing. Our failure to object
to terms contained in any communication from the purchaser will
not be a waiver of the terms set forth herein. To the extent that
this document may constitute an acceptance, such acceptance is
expressly conditioned on the purchaser’s assent to any additional
or inconsistent terms and conditions set forth in this document.
Rev. 3/02