Buyer, by accepting this instrument without written objection, agrees to the terms and conditions of sale set forth herein and agrees that such terms and conditions shall supersede those of Buyer in all instances where conflict exists. No additions to or modifications of this contract shall be binding unless made in writing signed by both of the parties.
Unless extended in writing, every quotation by seller is void unless accepted within thirty days from the date thereof and in the meantime it is subject to change upon notice; this quotation supersedes all previous quotations and agreements relative to the same transaction.
TITLE AND INSURANCE
Security title and right of possession of the equipment sold hereunder or any replacements shall remain in Seller regardless of mode of attachment to realty or other property, until the full price (including deferred payments and any notes or renewals or extensions) has been paid in cash. Buyer agrees to do all acts necessary to perfect and maintain said title and right in Seller. Upon delivery to the carrier at Seller’s plant (unless otherwise agreed to in writing) of any of the equipment, beneficial title and all risk of loss or damage shall pass to Buyer, and Buyer shall procure and maintain for the benefit of Seller and Buyer, as their interests may appear, adequate insurance on the equipment against damage by fire and other casualty.
TIME OF DELIVERY
Seller shall not be liable for reasonable delays in delivery; nor shall Seller be liable for delays in delivery, or failure to manufacture or deliver, due to causes beyond its reasonable control, such as acts of God, acts of Buyer, acts of civil or military authority, priorities or fires, strikes, floods, epidemics, quarantine restrictions, war, riot, delays in transportation, car shortages, and inabilities due to causes beyond Seller’s reasonable control to obtain necessary labor, materials or manufacturing facilities. In the event of any such delay, the delivery date shall be extended for a period of time equal to the period of delay and its consequences. Seller’s liability for failure or delay in delivery, for any cause whatsoever, whether beyond Seller’s control or not, shall not include indirect, special or consequential damages.
In cases where Buyer has paid part of the cost of equipment before delivery and Seller is unable to manufacture and deliver such equipment in accordance with the specifications within a reasonable period beyond the delivery date, Seller shall have the right to return all such pre-payments to Buyer whereupon each party agrees to terminate this contract without further liability to the other.
If either delivery or installation is delayed by Buyer, Buyer will bear the expense of those costs of storage, insurance, transportation and labor and the risk of deterioration attributable to any such delay.
Seller warrants the equipment to be delivered hereunder to be free of defects in workmanship and material at the inception of the applicable period specified below. THIS WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, GUARANTEES, OR MISREPRESENTATIONS, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANDABILITY OR FITNESS FOR PURPOSE.
If within six months from date of shipment (or if the equipment is installed by Seller or the work of installation is supervised by Seller’s representative, within six months from completion of installation provided some is not unreasonably delayed by Buyer), Buyer notifies Seller that the equipment is not as warranted and Seller finds the equipment to be thus defective, Seller shall be obligated and shall have the right to remedy such defect by, at the Seller’s option, either adjustment or repair or replacement of the whole or any part of the equipment. Buyer shall assume all responsibility and expense for removal, reinstallation and freight in connection with the foregoing remedies. Seller shall have the right of disposal of parts replaced by it hereunder.
SELLER’S LIABILITY TO BUYER WHETHER IN CONTRACT OR IN TORT ARISING OUT OF WARRANTIES, REPRESENTATIONS, INSTRUCTIONS OR DEFECTS FROM ANY CAUSE, SHALL BE LIMITED EXCLUSIVELY TO CORRECTING THE EQUIPMENT ON THE TERMS AND UNDER THE CONDITIONS AS FORESAID, AND ALL SUCH LIABILITY SHALL TERMINATE UPON EXPIRATION OF THE APPLICABLE WARRANTY PERIOD AS AFORESAID, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES NOR FOR LOSS; DAMAGES OR EXPENSES DIRECTLY OR INDIRECTLY ARISING FROM THE USE OF THE EQUIPMENT DELIVERED HEREUNDER.
Seller shall pay costs and damages finally awarded in any suit against Buyer to the extent said costs and damages are based solely upon a finding that the design or construction of the equipment furnished infringes a United States patent, exclusive of method or process patents, except infringement occurring as a result of incorporating a design or modification at Buyer’s request; provided that Buyer promptly notifies Seller of any charge of such infringement and Seller is given the right at its expense to settle such charge and to defend or control the defense of any suit based upon such charge. In no event shall Seller be liable to the Buyer for infringement of any patent which infringement results either from the combination with other apparatus of the equipment to be delivered hereunder. No license is granted or implied to any process patent owned, licensed or controlled by Seller, its subsidiaries or affiliates. This paragraph sets forth Seller’s exclusive liability with respect to patents.
Seller’s prices do not include sales, use, excise, added value or similar taxes, nor do such prices include import tax, import duty or similar levy imposed by a governmental authority in any country; nor do such prices include any tax, duty or other levy imposed by a government authority outside the country under which Seller is organized; consequently, in addition to the prices specified, the amount of any present or future such tax, duty or other levy applicable to the sale of the equipment hereunder (including spare parts or replacement parts required during installation of furnished under warranty) shall be paid by Buyer, or in lieu thereof Buyer shall provide Seller with a tax exemption certificate acceptable to the taxing authorities or Buyer shall reimburse Seller in case Seller has for whatever reason paid such taxes or levies.
This contract may be canceled by Buyer only upon the payment of reasonable cancellation charges which shall include but not be limited to expenses already incurred for labor and material costs, overhead, commitments made by Seller and a reasonable profit.
DANGEROUS RADIATIONS AND HIGH GAS PRESSURES
PARTICLE ACCELERATORS, X-RAY GENERATORS, AND OTHER EQUIPMENT SOLD BY SELLER PRODUCE DANGEROUS RADIATIONS AND CONTAIN INCLUSIVE AND/OR INTERCONNECTING HIGH GAS PRESSURES. BUYER, HAVING EXCLUSIVE CONTROL OVER THE OPERATION OF SUCH EQUIPMENT, UNDERTAKES THAT THIS EQUIPMENT SHALL BE ADEQUATELY SHIELDED SO AS TO PREVENT INJURY TO PERSONS OR PROPERTY AND WILL BE OPERATED ONLY BY EXPERIENCED AND AUTHORIZED PERSONNEL. SELLER ASSUMES NO LIABILITY FOR INJURY TO PERSONS OR DAMAGE TO PROPERTY CAUSED BY RADIATION PRODUCED BY OR PRESSURE EXPLOSIONS OF THE EQUIPMENT TO BE DELIVERED HEREUNDER. BUYER AGREES TO IDEMNIFY AND HOLD SELLER HARMLESS FROM ANY AND ALL LAWSUITS, DAMAGES, LIABILITIES AND EXPENSES, INCLUDING ATTORNEY’S FEES, INCURRED BY SELLER ON ACCOUNT OF ACTUAL ALLEGED DAMAGE TO PROPERTY OR INJURY TO PERSONS ARISING OR CLAIMED TO HAVE ARISEN FROM THE OPERATION OR USE OF SUCH EQUIPMENT BY BUYER, ITS EMPLOYEES, AGENTS, SERVANTS OR CONTRACTORS.
If Buyer shall become bankrupt or insolvent or compounds with his creditors or commences to be wound up or suffers a receiver to be appointed, Seller shall be at liberty by notice in writing to cancel this contract without judicial intervention or declaration of default of Buyer and without prejudice to any right or remedy which shall have accrued or shall accrue thereafter to Seller.
ADVICE BY SELLER
The giving or failure to give advice or recommendations of any character by Seller shall not give rise to any liability on the part of the Seller.
All disputes which may arise during or from the execution of the order shall be submitted for decision to a competent Court in the state in which the manufacturing facility of Seller is located. Seller reserves the right however, to bring any claim it may have against Buyer before any other Court.
No waiver by Seller of any breach of any provision hereof shall constitute a waiver of any other breach of any provision hereof.
The validity, construction and performance of this contract shall in all respects be governed by and interpreted in accordance with the laws of the State of New Hampshire, United States of America.
Seller shall not be liable in any event for any loss or injury to persons or property (including the equipment being installed) during installation, assembly or erection which results in whole or in part from:
1. The negligence or fault of Buyer, its employees, agents and its other independent contractors;
2. Buyer’s failure to observe the installing engineer’s instructions; or
3. The failure or malfunctioning of tools, equipment, facilities or devices not furnished by Seller, caused by defects therein not observable by the installing engineer’s visual inspection.
This proposal, including any attachments made a part of it, when accepted by buyer constitutes the entire contract between the parties concerning the transaction. Assignment of this contract may be made only with written consent of the other party.