2.1. All goods sold by Seller to Buyer will be delivered by Seller F.O.B. at Seller’s designated facility (“Shipping Point”). Seller reserves the right to make partial shipments and to select the means of delivery and carrier. Buyer assumes all risk of loss upon Seller’s delivery of the goods to the carrier at the Shipping Point and Seller shall have no further responsibility for the goods. Buyer shall be invoiced all loading, freight, shipping, insurance, forwarding and handling charges, taxes, fees, storage, and all other charges applicable to the goods after they are delivered by Seller at the Shipping Point. Buyer shall also pay for all freight charges from point of manufacture. Notwithstanding the foregoing, title to the goods shall be retained by Seller, as a vendor’s lien, until such goods are paid for in full by Buyer. Buyer hereby grants Seller and Seller hereby reserves a purchase money security interest in and to the goods sold to Buyer together with all proceeds thereof to secure Buyer’s performance and payment. Buyer agrees upon Seller’s request to do all acts and execute all documents reasonably necessary to assist Seller’s perfection and maintenance of any such security title and right of possession, including, but not limited to, executing and filing documents with the appropriate governmental agency.
2.2. Unless specifically agreed to in writing, all delivery dates are estimated and any failure by Seller to deliver in accordance with such dates shall not constitute a breach or repudiation by Seller. Seller shall not be liable for any costs or damages incurred by Buyer by reason of any delay in shipment unless specifically agreed to in writing.
2.3. In the event delivery is delayed without fault of Seller, Buyer shall submit payment for goods as set forth herein and bear all costs and expenses incurred by Seller in connection with such delay, including storage and transportation costs.
4.1. The purchase price of the goods sold hereunder shall reflect F.O.B. Shipping Point. Prices are subject to change by Seller in the event of any alteration in quantity, design or specification requested by Buyer, any increase in the cost of materials, labor, transportation, utilities or any other factor beyond the Seller’s reasonable control, including, but not limited to, any event of force majeure described in Section 20 of these Standard Terms.
4.2. All invoices are due and payable in full within 30 days from the date of the invoice. Interest at the rate of 1.5% per month, or such lesser rate as is the maximum rate of interest permitted by law, shall be charged on all overdue accounts. Buyer shall pay any and all costs of collection including, without limitation, reasonable attorney’s fees, whether or not suit is instituted, incurred bySeller in the event collection of any delinquent balance is required.
10.1. Seller will only accept returns for goods that conform with the provisions below regarding acceptable procedures for the return of goods, or that have otherwise been previously approved for return by Seller in its sole discretion; provided, however, that no approval will be given for the return of goods after that date which is 90 days after the date that such goods were shipped by Seller.
10.2. Upon Seller’s written approval and in order for Buyer to return goods hereunder, Seller will provide Buyer with a return goods authorization number (RGA) and, if requested by Seller, bar coded label with which Buyer shall identify the goods to be returned. All returned goods must be sent freight prepaid and be properly marked with the provided barcode label and authorization number.
10.3. If Buyer returns goods in the manner required under the provisions of Sections 10.1 and 10.2 above, and if the returned goods are (a) in new, unused condition, unopened and undamaged; (b) in the original insulated shipping container with all the original packaging; (c) in a configuration appearing in Seller’s current catalogue; and (d) with respect to returned goods that have an expiration date, received by Seller at least 60 days prior to such expiration date; the returned goods will be accepted by Seller for return with no handling charge. Goods returned that are not in compliance with the foregoing (a) through (d) or that require Seller to incur any additional costs will be subject to a restocking fee. Used or discontinued products or parts will not be accepted for credit under any circumstances unless specifically agreed to by Seller in its sole discretion.
10.4. A credit will be issued for all goods accepted for return hereunder, in an amount equal to (a) the lesser of the original selling price and the current selling price, minus (b) the applicable handling charge.
11.1. Express Warranty. Seller’s sole warranty to the original Buyer from Seller who buys solely for commercial or industrial uses, or for resale in the ordinary course of business, that each of the products and components thereof (collectively for the purposes of this Section 11, “Products”, is that the Goods shall be free from defects in material and/or workmanship, under normal and proper use and service conditions.
11.2. Express Warranty Limitations. It is not a Product defect, and thus the warranty in Section 11.1 does not apply to, repair, replacement or other service required by or loss or damage resulting from (i) other than normal and proper use and normal service conditions with respect to such Product, (ii) abuse, (iii) accident, (iv) alteration, (v) misuse, (vi) neglect, (vii) unauthorized repair or the failure to utilize suitably qualified and trained persons to perform service and/or repair of the Product, (viii) improper cleaning, or (ix) failure to follow installation, operating, cleaning or maintenance instructions.
11.3. Warranty Period. The “Warranty Period” for each Product is twelve (12) months from the date of shipment by Seller of such Product
11.4. Remedy. Seller’s sole obligation, and Buyer’s sole remedy, in the event of a breach of such warranty shall be to repair, replace (with new or rebuilt replacement products), or refund the purchase price thereof, as Seller may determine in its sole discretion at Seller’s cost, the defective goods or part(s) thereof; provided, that Buyer (a) promptly sends Seller notice in reasonable detail of the defect (which must be received by Seller during the Warranty Period); (b) provides Seller with such information concerning the failure so that Seller may determine in good faith whether the goods or part(s) thereof are defective; and (c) upon Seller’s request, returns the defective goods or parts thereof for inspection by Seller. Buyer shall have no liability to Seller if, and with respect to such goods for which, Buyer fails to adhere to the foregoing procedures. In the event that Seller elects to replace the defective goods or part(s) thereof, its sole obligation shall be to promptly deliver to Buyer such replacement goods or part(s) thereof (replaced goods or part(s) becoming the property of Seller). Installation of such replacement goods or part(s) shall be at the cost and the responsibility of Buyer. In the event Seller elects to repair the defective goods or part(s) thereof, its sole obligation shall be promptly to repair and return such goods or part(s). In connection therewith Buyer shall pay packing and all other similar charges, round trip shipment costs for the repaired goods or part(s), import and export duties, export inspection charges and all other directly related costs applicable for round trip between Buyer’s premises and the Seller facility. A Product or component thereof covered by the warranty in Section 11.1 supplied as a warranty replacement will assume the balance of the warranty period applicable to the original measured from the date of replacement. The warranty in Section 11.1 does not include, and Seller will not assume or pay, the expense of travel time or mileage, any premium time of any party other than Seller; any repair, replacement, analysis or any other services or parts furnished by any party other than Seller unless specifically authorized in advance and in writing by Seller. The warranty in Section 11.1 does not include labor for diagnosis, removal or installation of any Products.
11.5. Warranty Claims. Any claim under the warranty in Section 11.1 must be made as promptly as is reasonably possible, but in no event later than sixty (60) consecutive calendar days, after the discovery of the defect. Such claims are to be directed to the Display Technologies, Inc.. c/o Customer Service at 111 Marcus Avenue, Suite M68, Lake Success, NY 11042-1221 (516) 495-7000.
Any Product covered by the warranty in Section 11.1 must not be returned to Seller without authorization from the Seller’s Customer Service Department. Instructions for return will be given with any such authorization. Buyer will be invoiced for the shipping costs related to returning Products.
11.6. Limited Warranty. THE WARRANTY SET FORTH IN SECTION 11.1 ABOVE IS INTENDED SOLELY FOR THE BENEFIT OF BUYER. ALL CLAIMS HEREUNDER SHALL BE MADE BY BUYER AND MAY NOT BE MADE BY BUYER’S CUSTOMERS. THE WARRANTY SET FORTH IN SECTION 11.1 ABOVE IS IN LIEU OF, AND SELLER HEREBY DISCLAIMS AND EXCLUDES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
11.7. Buyer Warranties. Buyer shall provide a no defect in materials or workmanship warranty with respect to each product sold to an end customer for a period not less than the then remaining Warranty Period related to such product and afforded to Buyer pursuant to Section 11.1 above. Except with respect to the remedies provided by Seller to Buyer under this Section 11, any other warranties or representations, or remedies for breach thereof, which Buyer may provide to its end customers from time to time shall be the sole responsibility of Buyer, and Seller shall not be bound thereby in any manner whatsoever.
12.1. Delay. Seller shall not be liable for any loss or damage caused by delay in furnishing Products or services or any other performance.
12.2. Sole Remedies. The sole and exclusive remedies for breach of any non warranty obligation of Seller and the sole remedies for Seller’s liability of any kind (including liability for negligence) with respect to the goods and services provided to Buyer shall be to use all commercially reasonable efforts to promptly cure such breach, repair or replace the goods, or refund of the purchase price of defective goods, as Seller may determine in its sole discretion. Buyer must commence any suit for a cause of action arising hereunder within one year from the date in which the facts that gave rise to the cause of action first occurred.
12.3. Consequential Damages. In no event shall Seller’s liability of any kind include any special, indirect, incidental or consequential loss or damage, even if Seller shall have been advised of the possibility of such potential loss or damage.
12.4. Damages Amount Limitation. Seller’s cumulative liability for damages to Buyer for any cause whatsoever, and regardless of the form of action, whether in contract or in tort, including, but not limited to, negligence, shall be limited to the total contract price of the goods sold hereunder during the past twelve (12) months, plus or minus, as applicable, the amounts of all unpaid accounts payable and receivable between the parties, if any.
12.5. Indemnification. Buyer shall defend (at Seller’s request), hold harmless, and indemnify Seller, its parent and affiliated companies, and their respective officers, agents and employees for any and all damages, liabilities, allegations, claims, lawsuits, demands, judgments, awards, costs, (including attorneys’ fees) or settlements, for (a) injury to person, property, business, or otherwise related to the goods or services sold pursuant to the applicable Response or arising out of, or related to, such transaction, even if, to the extent permitted by law, arising from Seller’s negligence; (b) Buyer’s negligent or willful acts, or those of its employees and/or agents; and/or (c) Buyer’s breach of these Standard Terms. Seller’s indemnification rights and remedies and all of Seller’s other rights and remedies provided in these Standard Terms shall be non-exclusive rights and remedies for Seller and Seller may pursue any other legal theory or claim, whether based in law or equity, against Buyer. This Section 12.5 shall be construed in favor of providing defense and indemnification.
15.1. Indemnification by Seller. Seller will defend, indemnify and hold harmless Buyer from and against any and all loss, damage, cost or expense (including reasonable attorney’s fees) arising as a result of any claim that the goods sold hereunder infringe any third party U.S. patent, copyright, trademark, trade secret or other intellectual property right, provided that: (a) Buyer gives Seller prompt notice of any such claim, and permits Seller, through counsel of Seller’s choice, to defend or settle any such claim; and (b) Buyer provides Seller with all needed information, assistance and authority to enable Seller to defend or settle such claim. Additionally, in the event that any good sold hereunder becomes, or, in the opinion of Seller, is reasonably likely to become, subject to any such claim, Seller will, at its sole option and expense, either (y) procure for Buyer the right to continue to use the goods or (z) replace or modify the goods so that they are non-infringing; provided, however, that in the event that Seller determines the remedies in (y) or (z) to be impracticable in the exercise of its sole discretion, Seller may, as Buyer’s sole remedy (apart for indemnification as described above), provide Buyer with a refund of the purchase price in exchange for the return of the goods to Seller. Notwithstanding the foregoing, Seller shall have no obligation to Buyer under this Section 15.1 for any matter for which Seller is entitled to indemnity under Section 9 hereof.
15.2. Indemnification by Buyer. Buyer agrees not to violate or infringe upon the intellectual property rights relating to any goods sold under any invoice or hereunder, owned or controlled by Seller, or under which Seller has the right to manufacture or sell. Buyer will defend (at Seller’s request), indemnify and hold harmless Seller, its parent and affiliated companies, and their respective officers, agents and employees for any and all damages, liabilities, allegations, claims, lawsuits, demands, judgments, awards, or settlements in the event that Buyer modifies, or combines with any non-Seller goods, any of the goods purchased from Seller, and such modification or combination results in the infringement or alleged infringement of any intellectual property rights of any third party. The sale and delivery of the goods to Buyer hereunder shall in no way transfer to Buyer the right or ownership in any patents, copyrights, trademarks, technologies, designs, specifications, drawings, or other intellectual property incorporated into the goods. This Section 15.2 shall be construed in favor of providing defense and indemnification.
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