Subject to the exceptions and upon the conditions specified below Rotronic agrees to correct, either by repair or at its election, by replacement any defects of material or workmanship which develop within one (1) year after date of shipment of the product to the original Buyer by Rotronic, provided the investigation and inspection by Rotronic discloses that the product had manufacturing defects.
Any product claimed to be defective must, if requested by Rotronic, be returned to the factory, transportation charges prepaid, and will be returned to Buyer with the ansportation charges collect. Products found by us to have any manufacturing defects will be returned without charge to the Buyer, method of return to be determined by Rotronic.
Rotronic shall be released from all obligations under all warranties either expressed or implied, if any product covered hereby is repaired or modified by persons other than its own authorized service personnel. unless such repair by others is made with the written consent of Rotronic or unless such repair in the sole opinion of Rotronic is minor or unless such modification is merely the installation of a new Rotronic plug-in component for such product.
ROTRONIC MAKES NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION OF THE PRODUCTS COVERED HEREBY OTHER THAN AS EXPRESSLY STATED HEREIN, ROTRONIC EXPRESSLY AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTY OF MERCHANTABILITY AND MAKES NO WARRANTY WITH RESPECT TO THE FITNESS OF ANY PRODUCT COVERED HEREBY FOR ANY PARTICULAR PURPOSE OR USE UNLESS SUCH A WARRANTY IS EXPRESSLY SET FORTH.
THE BUYER OR ANYONE CLAIMING UNDER ANY WARRANTY RELATING TO PRODUCTS SOLD HEREUNDER AGREES THAT IF ROTRONIC BREACHED ANY SUCH WARRANTY, OR ANY WARRANTY IMPLlED EITHER IN FACT OR BY OPERATION OF LAW, OR IF ANY PRODUCT WARRANTED HEREUNDER PROVES DEFECTIVE IN ANY MANNER WHATSOEVER, ROTRONIC SOLE LIABILITY HEREUNDER IS LIMITED TO EITHER REPLACEMENT OF ANY DEFECTIVE PRODUCT OR AT THE, OPTION OF ROTRONIC, REFUNDING TO THE BUYER THE PURCHASE PRICE PAID FOR SUCH DEFECTIVE PRODUCT. THE BUYER AND ANYONE ELSE CLAIMING UNDER ANY WARRANTY RELATING TO PRODUCTS SOLD HEREUNDER EXPRESSLY AND SPECIFICALLY AGREE THAT ROTRONIC IS NOT RESPONSIBLE FOR, AND THE BUYER OR SUCH OTHER CLAIMANT OR CLAIMANTS SHALL ASSUME, ANY LIABILITY FOR PROPERTY DAMAGE, PROSPECTIVE PROFITS, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGE, OR OTHER COMMERCIAL OR ECONOMIC LOSS ARISING OUT OF USE OR POSSESSION OF ANY PRODUCT SOLD HEREUNDER. ROTRONIC SHALL NOT BE LIABLE FOR, AND A BUYER OR ANYONE ELSE CLAIMING UNDER ANY WARRANTY RELATING TO PRODUCTS SOLD HEREUNDER FURTHER AGREES, AND SHALL ASSUME, ANY LIABILITY FOR PERSONAL INJURY ARISING OUT OF USE OR POSSESSION OF ANY PRODUCT SOLD HEREUNDER.
If a Rotronic Special Warranty covering a designated item or items is attached hereto the terms and conditions specified therein are incorporated herein by reference and shall supplement this warranty, in the event of a conflict between the terms and/or conditions specified herein and those specified in such Special Warranty, the terms and/or conditions of the Special Warranty shall control.
Representations and warranties made by any person, including dealers and representatives of Rotronic. which are inconsistent or in conflict with the terms of this warranty (including but not limited to the limitations of the liability of Rotronic as set forth above), shall not be binding upon Rotronic unless given in writing and approved by an expressly authorized representative of Rotronic.
The prices set forth are based upon the manufacture of the quantity and type ordered and are subject to revision when interruption, engineering changes or changes in quantity or quality are caused or requested by Buyer. Prices do not include warranty service or installation outside the United States and Canada. Clerical errors made by Rotronic are subject to correction.
Weights and dimensions set forth in sales literature are not guaranteed unless previously certified in writing. Rotronic may, without affecting the obligations under a Sales Order, make insignificant changes in the specifications of the product or products delivered under the Sales Order from those contained in sales literature.
TERMS OF PAYMENT
Terms of payment are net thirty (30) days from date of the invoice unless otherwise specifically stated. Invoices are payable at par on date due at any place of collection designated by Rotronic in funds bankable. All orders are accepted subject to and the obligation of Rotronic to make deliveries is subject to, the right of Rotronic to require of Buyer payment of all or any part of the purchase price in advance of delivery or to make shipment C.O.D. If the Buyer fails to make advance payment when requested to do so by Rotronic, or if Buyer is or becomes delinquent in the payment of any sum due Rotronic, or refuses to accept C.O.D. shipments then Rotronic shall have the right, in addition to any other remedy to which it may be entitled in law or in equity, to cancel any Sales Order, refuse to make further deliveries, and declare immediately due and payable all unpaid amounts for goods previously delivered to Buyer. Each shipment shall be considered a separate and independent transaction and payment therefore shall be made accordingly.
Buyer is obligated to verify that any shipment corresponds to the packing slip. Shipments that show any shortages or discrepancy have to be reported in writing and returned in full to Rotronic within a period of ten (10) days from receipt of such shipment by the buyer thereof. In the case a shortage or discrepancy claim is made, Rotronic’s sole liability is limited to correcting the shipment or refunding the Buyer if no correction can be made within reasonable time. After expiration of the ten (10) day period, Rotronic will not be responsible for any shortage or discrepancy and the shipment will be deemed to be conforming to the packing slip.
CANCELLATION AND RESTOCKING CHARGES
Orders may not be cancelled and shipments returned without Rotronic’s written acceptance and payment of a charge by the Buyer. Cancellation and restocking charges will be based on the cost, including engineering, drafting, materials, labor and sales work incurred by Rotronic. If cancellation or return is approved by Rotronic, the following will apply:
1) Minimum charge of 25% of sales price, prior to any discount, if order is not in manufacturing or if return concerns standard products in quantities of no more than ten (10) units.
2) Minimum charge of 50% of sales price, prior to any discount, if order is in manufacturing or if return concerns non-standard products or standard products in quantities of more than ten (10) units.
The scheduled shipping or delivery date is our best estimate of the time the order will be shipped and Rotronic assumes no liability for loss, general damages, or special or consequential damages due to delays.
TAXES AND DUTIES
Federal, state or local excise, sales or use taxes shall be paid by Buyer. Buyers claiming tax exemption are responsible for providing Rotronic with all legally required documents and statements. Import duties and any other charges shall be paid by Buyers outside of the United States.
Rotronic agrees to defend any suit or proceeding brought against Buyer so far as based upon an assertion that any product, or any part thereof, sold under a Sales Order constitutes a direct infringement of any United States patent having a claim or claims covering solely the product itself, or any part thereof, or the normal use for which such product or part was designed, if notified promptly in writing and given authority, information and assistance (at Rotronic expense) for the defense of same, and Rotronic shall pay all damages and costs awarded therein against Buyer. If said product, or any part thereof, is in such suit held to constitute infringement and the use of said product or part is enjoined, Rotronic shall at its own option and at its own expense either (I) procure for Buyer the right to continue using said product or part, (II) replace the same with a non-infringing product or part, (III) modify it so it becomes non-infringing, or (IV) remove said product or part and refund the purchase price and transportation costs thereof. The foregoing obligations of Rotronic shall not apply to any infringement claim based upon (I) any use of any product sold hereunder in any process (other than a process carried out by such product as an inherent function of such product or in conjunction with any other product (unless such other product is an accessory especially designed and sold by Rotronic for use with the product sold hereby) or (II) any product manufactured to Buyer’s design or any product having a design arising out of compliance with Buyer’s specifications. The foregoing states the entire liability of Rotronic for patent infringement by said product.
LIMITATION OF ACTIONS
No action, shall be brought for any breach of this contract more than one (1) year after the accrual of the cause of action therefore.
No acceptance of the terms and conditions of this sale shall be effective which varies the terms hereof or proposes additional terms. Any such proposals shall be deemed rejected unless expressly approved by Rotronic.
This contract shall be governed and construed in accordance with the law of the State of New York. The venue for any action arising out of this agreement shall be Suffolk County, New York.