TERMS AND CONDITIONS OF SALE
- TERMS AND CONDITIONS
Products and services (referred to herein as “Products”) furnished by Ceradyne, Inc. are sold only on the terms and conditions stated herein as well as any additional terms and conditions that may appear on the face hereof. In the case of a conflict between the terms and conditions stated herein and those appearing on the face hereof, the latter shall control. Notwithstanding any terms or conditions on Customer’s order, Ceradyne, Inc.’s performance of any contract is expressly made conditional on Customer’s agreement to Ceradyne, Inc.’s Terms and Conditions of Sale unless otherwise specifically agreed to in writing by Ceradyne, Inc.. In the absence of such agreement, commencement of performance and/or delivery shall be for Customer’s convenience only and shall not be deemed or construed to be acceptance of Customer’s terms and conditions, or any of them. If a contract is not earlier formed by mutual agreement in writing, acceptance of any Product shall be deemed acceptance of the terms and conditions stated herein. These Terms and Conditions of Sale may not be amended or any provision thereof waived in any way except by an instrument in writing signed by both parties.
All orders must be in writing and shall be subject to acceptance by Ceradyne, Inc. at its home office in Costa Mesa, CA, USA or at its plant from which the Products are to be shipped.
- QUOTATIONS AND PRICES
Ceradyne, Inc.’s prices and quotations are subject to the following:
- All published prices are subject to change without notice.
- Unless otherwise stated in writing by Ceradyne, Inc., all prices quoted shall be exclusive of transportation, insurance, taxes (including, without limitation, any sales, use or similar tax), license fees, customs fees, duties and other charges related thereto, and Customer shall report and pay any and all such shipping charges, premiums, taxes, fees, duties and other charges related thereto and shall hold Ceradyne, Inc. harmless there from, provided that, if Ceradyne, Inc., in its sole discretion, chooses to make any such payment, Customer shall reimburse Ceradyne, Inc. in full upon demand. If claiming a tax exemption, Customer must provide Ceradyne, Inc. with a valid tax exemption certificate.
- Stenographical, typographical and clerical errors are subject to correction.
- Quotations are based on Ceradyne, Inc.’s Acceptance Quality Levels (“AQL”) commensurate with normal processing. If particular AQL values are required, Customer must state them along with its original request.
- Prices quoted are for Products only and do not include technical data, proprietary rights of any kind, patent rights, tests other than Ceradyne, Inc.’s standard tests, or packaging other than Ceradyne, Inc.’s normal domestic commercial packaging, unless expressly agreed to in writing by Ceradyne, Inc.
- Published weights and dimensions are approximate only. Certified dimension drawings can be obtained upon request. Manuals, programs, listings, drawings or other documentation required hereunder must be referenced specifically.
- On custom made Products, Ceradyne, Inc. reserves the right to ship 10% over or under the quantity ordered by Customer. Customer agrees that shipment within that range constitutes complete performance, and that the total price will be adjusted to conform to the quantity delivered.
A tooling charge may be applicable to cover partial tooling costs for new and revised parts. This will be a one-time service charge covering a portion of the preparatory operations necessary to manufacture Purchaser’s Products, but does not constitute payment for any resulting dies or special tools, which shall remain the property of Ceradyne, Inc.. Tooling will be reserved for exclusive use in serving Purchaser, and there will be no charges for maintenance unless specifically stated on the face hereof. When tooling has not been used for Purchaser for at least three years, Ceradyne, Inc. reserves the right to scrap it without notice.
- TERMS OF PAYMENT
Unless otherwise agreed in writing, and unless credit is granted, payment shall be in U.S. Dollars and is due in full prior to the scheduled date of shipment. All payments for Products released and shipped on approved credit accounts shall be due in full 30 days from date of invoice therefore. Past due balances shall accrue interest at the rate of 1½% per month or the highest rate allowed by law, whichever is less. Partial shipments will be billed as made and payments therefore are subject to the above terms. Payment shall not be withheld for delay in delivery of required documentation unless a separate price is stated therefore and then only to the extent of the price stated for such undelivered documentation. Ceradyne, Inc. may cancel or delay work on or delivery of Products in the event Customer fails to make prompt payment therefor, in the event of an arrearage in Customer’s account with Ceradyne, Inc., or if, in Ceradyne, Inc.’s judgment, the financial condition of Customer at any time prior to delivery does not justify continuation of work on or shipment of the Products.
- SECURITY AGREEMENT (Conditional Sale)
It is agreed by Customer and Ceradyne, Inc. that as to the Products which are the subject of this contract of sale and all accessions thereto and proceeds thereof, a purchase money security interest shall attach with Ceradyne, Inc. as secured party, and with respect to Products which are resold in any form by Customer, Ceradyne, Inc. shall be the assignee of any security interest which Customer retains or obtains in such Products until Customer has made payment in full therefore in accordance with the terms hereof. Customer shall be in default if it fails to make any payment as provided for herein or if bankruptcy, receivership or insolvency proceedings are instituted by or against Customer or if Customer makes any assignment for the benefit of creditors. Upon Customer’s default, Ceradyne, Inc. shall have all the rights and remedies of a secured creditor as well as those of a Ceradyne, Inc. of goods, under the Uniform Commercial Code and other applicable law, including but not limited to the RIGHT TO TAKE POSSESSION of the Products herein furnished. Ceradyne, Inc. may remedy any default and may waive any default without waiving the default remedied or without waiving any prior or subsequent default. Customer agrees to cooperate fully and assist Ceradyne, Inc. in perfecting and/or continuing Ceradyne, Inc.’s security interest and to execute such documents and accomplish such filings and/or recordings thereof as Ceradyne, Inc. may deem necessary for the protection of Ceradyne, Inc.’s interest in the Products herein furnished. The making of this contract of sale by Customer and Ceradyne, Inc. shall constitute their signing of this Security Agreement.
- TRANSPORTATION AND RISK OF LOSS
Transportation will normally follow Customer’s shipping instructions, but Ceradyne, Inc. reserves the right to ship Products freight collect and to select the means of transportation and routing when Customer’s instructions are omitted or deemed unsuitable by Ceradyne, Inc.. Unless otherwise advised, Ceradyne, Inc. may insure the full value of the Products or declare full value thereof to the transportation company at the time of delivery and all freight and insurance costs shall be for Customer’s account. All Products are shipped FOB point of manufacturing, whether or not installation is provided by or under supervision of Ceradyne, Inc.. Title shall pass from Ceradyne, Inc. to Customer when Products are loaded on the transportation company’s vehicle at the location of Ceradyne, Inc.’s manufacturing plant from which the products are shipped. Subsequent confiscation or destruction of or damage to Products shall not release, reduce or in any way affect the liability of Customer therefore. Notwithstanding any defect or nonconformity, or any other matter, such risk of loss and/or damage shall remain in Customer until the Products are returned at Customer’s expense to such place as Ceradyne, Inc. may designate in writing. Customer, at its expense, shall fully insure Products against all loss and/or damage until Ceradyne, Inc. has been paid in full therefore, or the Products have been returned, for whatever reason to Ceradyne, Inc.. All Products must be inspected upon receipt and claims should be filed with the transportation company when there is evidence of shipping damage, either concealed or external.
Ceradyne, Inc. will make all reasonable efforts to observe the dates it has indicated for delivery or other performance. However, Ceradyne, Inc. shall not be liable in any way because of any delay in performance hereunder due to acceptance of prior orders, technical difficulties, strike, lockout, riot, war, fire, act of God, accident, failure or breakdown of components necessary for completion of the Products, delays caused by any subcontractor, supplier or Customer, inability to obtain or substantial rises in the price of labor, materials or manufacturing facilities, curtailment of or failure to obtain sufficient electrical or other energy supplies, or compliance with any law, regulation, or order, whether valid or invalid, of any governmental body or any instrumentality thereof, whether now existing or hereafter created, or due to any unforeseen circumstances or causes beyond Ceradyne, Inc.’s control. Provided such delay is neither material nor indefinite, Ceradyne, Inc.’s performance shall be deemed suspended during and extended for such time as it is so delayed, and thereafter Customer shall accept performance hereunder. Delay in performance shall not be considered material or indefinite unless it exceeds or is reasonably estimated by Ceradyne, Inc. to exceed a period of six (6) months. In addition, Ceradyne, Inc.’s inventories and current production must be allocated so as to comply with applicable Government regulations. In the absence of such regulations, Ceradyne, Inc. reserves the right, in its sole discretion, to allocate inventories and current production and substitute suitable materials when, in its opinion, such allocation or substitution is necessary due to such circumstances or causes. In the interest of conservation of scarce materials, and of efficient utilization of high value parts and components, the Products may contain remanufactured parts and components. Such parts and components are covered by the same warranty and are subject to the same high standards of quality control applied to other parts and components. No penalty clause of any kind shall be effective. As used herein “performance” shall include, without limitation, fabrication, shipment, delivery, assembly, installation, testing and warranty repair or replacement, as applicable.
- ACCEPTANCE OF PRODUCTS
The furnishing by Ceradyne, Inc. of a Product to Customer shall constitute acceptance of that Product by Customer unless notice of defect or nonconformity is received by Ceradyne, Inc. within thirty (30) days of receipt of the Product at Customer’s designated receiving address, provided that, for Products for which Ceradyne, Inc. agrees in writing to perform acceptance testing after installation, the completion of Ceradyne, Inc.’s applicable acceptance tests, or execution of Ceradyne, Inc.’s acceptance form by Customer, shall constitute acceptance of that Product by Customer.
- ASSIGNMENT AND TERMINATION
Any assignment by Customer of any contract hereunder without the express written consent of Ceradyne, Inc. is void. No order may be terminated by Customer except by mutual agreement in writing. Terminations by mutual agreement are subject to the following conditions: (1) Customer will pay, at applicable contract prices, for all products which are completely manufactured and allocable to Customer at the time of Ceradyne, Inc.’s receipt of notice of termination; (2) Customer will pay all costs, direct and indirect, which have been incurred by Ceradyne, Inc. with regard to products which have not been completely manufactured at the time of Ceradyne, Inc.’s receipt of notice of termination, plus a pro rata portion of normal profit on the contract; and (3) Customer will pay a termination charge on all other Products affected by the termination. Ceradyne, Inc.’s normal accounting practices shall be used to determine costs and other charges. To reduce termination charges, Ceradyne, Inc. will divert completed parts, material or work-in-progress from terminated contracts to other Customers whenever, in Ceradyne, Inc.’s sole discretion, it is practicable to do so.
- SUPPLIES OR SERVICES FOR THE UNITED STATES GOVERNMENT
To the extent that Products furnished hereunder are furnished for delivery pursuant to, or for use in the performance of any contract with the United States or any related subcontract, and to the extent that any contractual provisions are expressly required by the laws or procurement regulations of the United States to be included in such contracts or subcontracts, such contractual provisions are expressly incorporated herein by this reference, with necessary changes in points of detail, e.g., references to parties.
- PATENTS AND TRADEMARKS
- Ceradyne, Inc. shall, at its own expense defend any suit that may be instituted against Customer for alleged infringement of any United States patent, trademark or copyright related to the Products (except Products covered by subsection 12(b) below) provided that: (1) such alleged infringement does not arise from use of such Products as a part of or in combination with any other devices or parts; (2) Customer gives Ceradyne, Inc. prompt notice in writing of any such suit and permits Ceradyne, Inc. through counsel of its choice, to answer the charge of infringement and defend such suit; and (3) Customer gives Ceradyne, Inc. all needed information, assistance and authority to enable Ceradyne, Inc. to defend such suit. In the case of a final award of damages in any such suit Ceradyne, Inc. shall pay such award, but shall not be responsible for any settlement made without its prior written consent. THIS SECTION STATES CERADYNE, INC.’S SOLE RESPONSIBILITY AND LIABILITY, AND THE CUSTOMER’S SOLE REMEDY, FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT BY ANY PRODUCT DELIVERED HEREUNDER OR ANY PARTS THEREOF. THIS SECTION IS IN LIEU OF AND REPLACES ANY OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTY AGAINST INFRINGEMENT. IN NO EVENT SHALL CERADYNE, INC. BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY SUCH INFRINGEMENT.
- Customer shall, at its own expense, indemnify and hold Ceradyne, Inc. harmless from and against any expense or loss resulting from any infringement of any patent, trademark or copyright arising as a result of Ceradyne, Inc.’s compliance with any of the Customer’s designs, specifications or instructions, including any marking or branding made at Customer’s request, and shall defend at its own expense, including attorneys’ fees, any suit brought against Ceradyne, Inc. alleging any such infringement provided that Ceradyne, Inc. (1) gives Customer prompt notice in writing of any such suit and permits Customer, through counsel of its choice, to defend such suit and (2) gives Customer all needed information, assistance and authority to enable Customer to defend such suit.
Ceradyne, Inc. customarily warrants that each Product sold by it will conform to the applicable specifications at the time of delivery. Ceradyne, Inc.’s obligation under said warranty continues for a period of time and under such conditions as specified in Ceradyne, Inc.’s warranty for the individual Product. If no period of time is stated, then such warranty is limited to thirty (30) days. Unless otherwise specified on the face hereof or otherwise mutually agreed in writing, Ceradyne, Inc.’s applicable standard warranties are incorporated herein by this reference. Repair, or at Ceradyne, Inc.’s option, replacement of defective parts shall be the sole and exclusive remedy under warranty, provided that Ceradyne, Inc. may, as an alternative, elect to refund an equitable portion of the purchase price of the Product. THE WARRANTY STATED HEREIN CONSTITUTES THE EXCLUSIVE WARRANTY PROVIDED BY CERADYNE, INC. WITH RESPECT TO ALL PRODUCTS AND IS EXPRESSLY GIVEN IN LIEU OF AND EXCLUDES ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR PARTICULAR PURPOSE, USE OR APPLICATION, AND ALL OTHER OBLIGATIONS OR LIABILITIES ON THE PART OF CERADYNE, INC., UNLESS SUCH OTHER WARRANTIES, OBLIGATIONS OR LIABILITIES ARE EXPRESSLY AGREED TO IN WRITING BY CERADYNE, INC. Some experimental, developmental or special application products, or products with a life test requirement, are sold without warranty. IN SUCH CASE, CERADYNE, INC. WARRANTS THAT THE PRODUCTS MEET APPLICABLE SPECIFICATIONS WHEN SHIPPED BY CERADYNE, INC. BUT CERADYNE, INC. SHALL HAVE NO OTHER OR FURTHER RESPONSIBILITY WHATSOEVER.
- WARRANTY REPLACEMENT AND ADJUSTMENT
All claims under warranty must be made promptly after occurrence of circumstances giving rise thereto and must be received within the applicable warranty period by Ceradyne, Inc. or its authorized representative. Such claims must include the Product type and serial numbers, if any, Customer’s purchase order number, and a full description of the circumstances giving rise to the claim. Before any Products are returned for repair and/or adjustment, a Return Material Authorization (“RMA”) number must be obtained from Ceradyne, Inc. or its authorized representative for the return and instructions as to how and where these Products should be shipped must be obtained. Any Product returned to Ceradyne, Inc. for examination shall be sent prepaid via the means of transportation indicated as acceptable by Ceradyne, Inc. Ceradyne, Inc. reserves the right to reject any warranty claim not promptly reported and any warranty claim on any item that has been altered or has been shipped by unacceptable means of transportation. When any Product is returned for examination and inspection, or for any other reason, Customer shall be responsible for all damage resulting from improper packing or handling, and for loss in transit, notwithstanding any defect or non-conformity in the Product. In all cases Ceradyne, Inc. has sole responsibility for determining the cause and nature of failure and Ceradyne, Inc.’s determination with regard thereto shall be final.
If it is found that the Product has been returned without cause and is still serviceable, Customer will be notified and the Product returned at Customer’s expense. In addition, a charge for testing and examination may, in Ceradyne, Inc.’s sole discretion, be made on Products so returned.
- DAMAGES AND LIABILITY
CERADYNE, INC.’S AGGREGATE LIABILITY IN DAMAGES OR OTHERWISE SHALL NOT EXCEED THE PAYMENT, IF ANY, RECEIVED BY CERADYNE, INC. FOR THE UNIT OF PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED, AS THE CASE MAY BE, WHICH IS THE SUBJECT OF CLAIM OR DISPUTE. IN NO EVENT SHALL CERADYNE, INC. BE LIABLE FOR LOSS OF USE, ANTICIPATED PROFITS OR ANY OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, HOWSOEVER CAUSED, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- DISPUTES, GOVERNING LAW
All disputes under any contract concerning Products not otherwise resolved between Ceradyne, Inc. and Customer shall be resolved in a court of competent jurisdiction for the location of Ceradyne, Inc.’s manufacturing plant from which the products are shipped, and in no other place, provided that in Ceradyne, Inc.’s sole discretion such action may be heard in some other place designated by Ceradyne, Inc. (if necessary to acquire jurisdiction over third persons), so that the dispute can be resolved in one action. Customer hereby consents to the jurisdiction of such court or courts and agrees to appear in any such action upon written notice thereof. No action, regardless of form, arising out of or in any way connected with the Products furnished by Ceradyne, Inc. may be brought by Customer more than one (1) year after the cause of action has accrued. If any part, provision or clause of the terms and conditions of sale or the application thereof to any person or circumstances is held invalid, void or unenforceable, such holding shall not affect and shall leave valid all other parts, provisions, clauses or applications of the terms and conditions remaining and to this end the terms and conditions hereof shall be treated as severable. All contracts for the sale of Products shall be construed under and governed by the law of the location of Ceradyne, Inc.’s manufacturing plant from which the Products are shipped.
Unless an appropriate license, exemption, or similar authorization has been duly obtained to Ceradyne, Inc.’s satisfaction, Customer shall not, nor shall Customer authorize or permit its employees, distributors, customers, and/or agents to, export or re-export any of the Products (including any information relating thereto) to any country specified as a prohibited destination in applicable U.S. laws and regulations, including the Regulations of the U.S. Department of Commerce and/or other government agencies. Customer agrees to defend, indemnify, and hold harmless Ceradyne, Inc. from and against any claim, loss, liability, expense, or damage (including liens or legal fees) incurred by Ceradyne, Inc. with respect to any of Customer’s export or re export activities contrary to the foregoing instructions.
- PROPRIETARY RIGHTS
Unless expressly agreed to in writing by Ceradyne, Inc., the sale of Products by Ceradyne, Inc. pursuant hereto does not convey to Customer any rights in any of Ceradyne, Inc.’s patents, copyrights, trademarks or other intellectual property rights of Ceradyne, Inc., all of which shall be and remain the sole property of Ceradyne, Inc.. Customer shall not challenge or take any position inconsistent with Ceradyne, Inc.’s ownership of such rights.