1. CONTRACT.
These Terms and Conditions and any agreement or specifications agreed to in writing by FADAL and Customer shall constitute collectively the entire contract between FADAL and the Customer. In the event of any conflict between these Terms and Conditions and any other such agreement or specifications, these Terms and Conditions shall prevail. No waiver, alteration, or modification of any of the provisions hereof shall be binding unless specifically and expressly agreed to in writing by an authorized employee of the Customer and an authorized employee of FADAL. No oral or implied statements can vary the terms of this agreement.
2. DELIVERY.
a. The Customer understands that the shipment schedule provided in this contract is approximate only. FADAL will use all reasonable efforts to meet the stipulated shipment schedule and shipment within a reasonable time thereof shall constitute compliance with this contract. Receipt of the goods by Customer upon delivery shall constitute a waiver of all claims for delay.
b. FADAL will be excused for delay in delivery and/or may suspend performance of this Contract without liability to the Customer in the event of causes beyond FADAL’s control which adversely affect FADAL’s ability to manufacture and ship the goods.
c. Methods and routes of shipment, unless specified by Customer and agreed to by FADAL, shall be accepted as chosen by FADAL. Delivery to transportation companies F.O.B. FADAL’s factory shall constitute delivery to Customer and shall also constitute acceptance by customer of the goods.
3. PAYMENT TERMS.
Payment to FADAL will be in US cash, net 30 days after delivery of goods. However, FADAL retains the right to change payment terms based on the credit status of a customer at the time of order placement. Such payment terms may include COD or payment by irrevocable letter of credit confirmed by a US bank, payable upon presentation of a bill of lading, commercial invoice and packing list.
4. TERMINATION: GENERAL.
Except as otherwise expressly provided in this Contract, this Contract is not subject to termination in whole or in part.
5. TITLE; RISK OF LOSS OR DAMAGE; SECURITY INTEREST.
Unless otherwise specified by FADAL in writing, all deliveries shall be F.O.B., ex works, FADAL's dock. Title to the goods delivered, as well as all risk of loss or damages to the goods, shall pass to Buyer upon delivery. To secure payment of the unpaid portion of the purchase price (including all taxes), if any, Buyer grants FADAL a purchase money security interest in the goods, together with all replacements, substitutions, additions, attachments, repairs, accessories, and all proceeds thereof, including any insurance proceeds arising from loss or damage to the goods. Buyer shall, upon request by FADAL, provide all information and signatures required by FADAL to perfect such security interest. FADAL reserves the rights granted to a secured creditor under the California Commercial Code and other applicable commercial codes; this includes, but is not limited to, the right upon demand to repossess equipment, material and spare parts delivered to Buyer if Buyer fails to timely make payment for the goods. FADAL may require Buyer to assemble the collateral and make it available to FADAL at a place designated by FADAL.
6. WARRANTY; LIMITATION OF REMEDIES.
a. FADAL warrants, for a period of one year new machine Products, and six months for Service parts Products, from the date of shipment, that the goods, when shipped, will be free of defects in workmanship and material and will be of the kind and quality designated or specified in the contract. All remanufactured machine tools are warranted for 6 months limited to parts only. There is no warranty on tooling. All warranties in these Terms and Conditions are void if products are subjected to abnormal usage as determined by FADAL. If any such defects exists, or later appear, FADAL shall undertake, at FADAL’s sole expense, prompt remedial action to correct the same. However, FADAL shall have no obligation or liability under this warranty unless FADAL has received written notice specifying such defect no later than thirty (30) days after such defect is first discovered, but no later than one year from the date the goods are shipped to Customer. Customer will provide FADAL with an opportunity to inspect and test the goods claimed to be defective. Remedial action under this warranty shall require only that FADAL, at FADAL’s option, repair or modify the goods, or replace the same F.O.B. FADAL’s factory.
b. The foregoing provisions of this paragraph set forth and constitute FADAL’s sole obligation and liability and Customer’s exclusive remedy under this warranty. FADAL’s liability shall immediately cease in the event the product is subjected to any of the following: accident, misuse, negligence, alteration, improper repair, servicing or maintenance, installation or use contrary to local, state or federal laws, codes, or regulations. FADAL's liability shall immediately cease if the product is used contrary to FADAL’s warnings, instructions or recommendations, or if product is used contrary to the purpose or manner for which it was designed. Where the alleged breach of warranty is due to incomplete information supplied by Customer or his representative to FADAL, FADAL’s liability shall also immediately cease. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXCEPT TITLE, WHETHER STATUTORY, EXPRESS, OR IMPLIED (INCLUDING WARRANTIES FOR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE).
c. Customer represents that it alone has determined that the goods purchased are suitable for and will meet the requirements of their intended use. Customer also acknowledges that FADAL may from time to time use remanufactured or re-tooled goods that meet the manufacturer’s specifications in connection with the goods and materials covered by this agreement.
7. LIMITATION OF LIABILITY; INDEMNIFICATION.
a. FADAL’s liability on any claim of any kind, whether based in contract, warranty or tort (including negligence, failure to warn, or strict liability), or otherwise shall in no case exceed the contract price of the goods on which such liability is based. FADAL’s liability on any claim for any expense, injury, loss or damage arising out of, connected with, or resulting from this contract, or from the performance or breach thereof shall also be limited to the contract price of the goods on which such liability is based. FADAL’s liability on any claim resulting from the design, manufacture, sale, delivery, resale, installation, inspection, repair, reconditioning, operation or use of any goods covered by or furnished under this contract shall in no case exceed the contract price of the goods on which such liability is based. In no event shall FADAL be liable for any special, indirect, or consequential damages.
b. Customer agrees to defend, indemnify and hold FADAL harmless from and against all claims, losses, expenses, damages, and liabilities, whether based in contract, warranty, or tort (including negligence, failure to warn, or strict liability) arising out of the following: product abuse, misuse, alteration, improper repair, servicing or maintenance, or installation contrary to local, state or federal laws, codes, or regulations. This agreement also includes product use contrary to FADAL’s warnings, manuals or recommendations; failure to provide, implement, or enforce product notices as specified in paragraph 7; commercial or other terms and conditions (including warranties and remedies) offered by Customer upon resale or other transfer of products; or, Customer’s negligence or other fault.
8. PRODUCT NOTICES.
Customer agrees to provide the user (including its employees) of the goods or a transferee in the event of a transfer of the goods or interest therein by the Customer with these Terms and Conditions of Sale/Purchase as well as all FADAL supplied product notices, warnings, instructions, recommendations and similar materials. The Customer agrees to implement and enforce the safety provisions of these materials.
9. LAWS, CODES, REGULATIONS.
a. Compliance with local, state or federal laws, codes, or regulations relating to user safety, training, product installation, servicing, use and maintenance is the sole responsibility of the Customer. FADAL does not undertake or assume Customer’s responsibility of obligations for the safety of Customer’s workplace or employees imposed on Customer by code, regulation, or judicial decision and it is understood that FADAL makes no warranty or representations with respect thereto.
b. Delivery of the goods and the performance of any other obligations under any agreement between the parties are subject to U.S. laws and regulations as they may exist from time to time, including, without limitation, those concerning export or re-export of goods or data.
c. All commodities/software/technical data shipped by or on behalf of FADAL are destined to the ship to address agreed on the purchase document. Diversion contrary to U.S. law is prohibited.
10. CUSTOMER’S DEFAULT: TERMINATION.
a. Customer shall be liable to FADAL for all damages and losses, including loss of reasonable profits, and for cost and expenses, including reasonable attorney’s fees, sustained by FADAL and arising from Customer’s default under, or breach of, any of the terms and conditions of this Contract. In the event of any such default or breach, FADAL may, without any obligation or liability to the Customer, terminate this Contract forthwith by written notice to Customer. Any such action by FADAL shall not be deemed to waive any right or remedy with respect to such default or breach.
b. The institution of any proceedings by or against the Customer, voluntarily or involuntarily, under bankruptcy or insolvency laws or for the appointment of a receiver or trustee or assignee for the benefit of creditors shall be deemed an event of default under this Contract.
11. ARBITRATION.
a. Any controversy or claim arising out of or relating to this agreement, or the breach thereof shall be determined and settled solely and exclusively by arbitration held in Los Angeles, California under Title 9, United States Code “Arbitration” (the “U.S. Federal Arbitration Act”). The rules shall be in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. Any claim for arbitration must be filed in writing with the American Arbitration Association in Los Angeles and a copy sent to the other party within six (6) months after the act, omission or alleged breach that gave rise to the claim or controversy. Otherwise, the right to any remedy will be deemed forever waived.
b. The Agreement to arbitrate will be specifically enforceable and any award or decision rendered by the arbitrator shall be final and conclusive and the arbitration award may be entered in any court having jurisdiction and judgment obtained thereon.
c. The arbitrator(s) shall not have the authority or power to amend or modify the terms of this Agreement. Furthermore, the arbitrator(s) shall not have the authority or power to fashion any relief or remedy which would have the effect of modifying or amending the terms of this Agreement or of creating additional rights or obligations for a party to this Agreement. The arbitrator(s) shall only award such relief and remedies as are available to a party under the applicable law. The arbitrator(s) shall have no power or authority to award punitive or exemplary damages.
12. SEVERABILITY.
Should any provisions of this contract be determined by the arbitrator(s) to be invalid and such determination be confirmed by a court of competent jurisdiction, such invalidity shall in no way affect the validity or enforceability of any other provision of this Agreement.
13. APPLICABLE LAW.
This Agreement shall be governed, construed and enforced in accordance with the laws of the United States, including the Federal Arbitration Act, and the applicable Uniform Commercial Code.
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Revision Date - April 20, 2005
