These Terms and Conditions of Sale (this “Agreement”) shall govern all sales and transactions between Casting Machining Engineering Co., Ltd. (“Seller”) and any party submitting a purchase order to Seller (the “Purchaser”), for purposes of setting forth the terms and conditions by which Seller will sell to Purchaser, and Purchaser will purchase from Seller, certain products and equipment of Seller (the “Products”). This Agreement shall apply to all transactions between Purchase and Seller with respect to the Products and shall supersede and control over any conflicting or other terms and conditions set forth in any other writing or instrument (including any purchase order) submitted by Purchaser and/or accepted by Seller in connection with any purchase of Products. By submitting a purchase order to Seller, Purchaser hereby accepts and ratifies the terms of this Agreement.
1. Purchase Orders. From time to time, Purchaser shall issue to Seller purchase orders for Products, which purchase orders shall constitute an offer by Purchaser to purchase Products pursuant to the terms and conditions of this Agreement. Any such purchase orders shall be valid only upon acceptance by Seller, and the Purchaser acknowledges and agrees that any such purchase order shall be subject to the terms and conditions set forth in this Agreement. Purchaser shall be obligated to purchase the Products specified in a purchase order that is accepted by Seller. Seller may reject a purchase order for any reason or no reason. Once a purchase order is accepted by Seller, Purchase may not thereafter cancel such purchase order without Seller’s prior written consent.
2. Price. All prices set forth in any purchase order submitted pursuant to this Agreement are EXW-ExWorks Seller’s place of business. All prices are exclusive of any and all taxes, including, but not limited to, excise, sales, use, property or transportation taxes related to the sale or use of the Products, now or hereafter imposed, together with all penalties and expenses. Purchaser shall be responsible for collecting and/or paying any and all such taxes, whether or not they are stated in any invoice for the Products. Purchaser shall indemnify and hold Seller harmless from and against the imposition and payment of such taxes. Seller, at its option, may at any time separately bill the Purchaser for any taxes not included in Seller's invoice and Purchaser shall pay said taxes, or in lieu thereof, shall provide Seller with a tax exemption certificate acceptable to Seller and any relevant taxing authorities. Unless otherwise specified herein, all prices are exclusive of inland transportation, freight, insurance, duties, customs clearance, and other costs and expenses relating to the shipment of the Products from the Seller’s place of business. Any payment by Seller of freight insurance and other costs shall be for the account of Purchaser and shall be repaid/reimbursed to Seller by Purchaser immediately.
3. Payment. All invoiced amounts shall be due by Purchaser to Seller immediately upon Purchaser’s receipt of each invoice. Seller reserves the right to charge interest at the rate of 1.5% per month (but not more than the maximum percentage permitted by law) on all amounts not paid by Purchaser in accordance with this Agreement. Seller reserves the right at any time to revoke any credit extended to Purchaser or otherwise request further assurances from Purchaser to support Purchaser’s obligations hereunder. Seller shall have no obligation to make sale or shipment of any products to Purchaser, in any manner, if at any time the Seller has reason to believe that the financial condition of Purchaser is impaired or unsatisfactory to Seller, or if at the time of such sale or shipment, Purchaser is delinquent in the payment of any account or invoice to Seller. In the event Purchaser shall be in default of any terms and conditions hereof, or becomes insolvent or proceedings are instituted to declare Purchaser bankrupt, or a receiver is appointed for Purchaser in any court, Seller may at its option terminate this Agreement (and some or all purchase orders submitted hereunder) and/or declare any and all claims or demands against Purchaser held by Seller immediately due and payable, together with any and all attorneys’ fees and costs incurred by Seller in enforcing its rights hereunder, all of which Seller may recover from Purchaser.
4. Delivery. Risk of Loss shall pass in accordance with EXW-ExWorks Seller’s place of business. Notwithstanding the provisions contained in this Agreement to the contrary, Seller shall not be responsible or liable for any loss or damage whatsoever, including loss of income and/or profits, incidental, special or consequential damages resulting from Seller's delayed performance in shipment and delivery of the Products for any reason whatsoever. All risk of damage or loss to the Products at any time after the Products have been placed at the disposal of Purchaser is hereby assumed by Purchaser and such damage or loss shall not operate in any way to release Purchaser from any of its obligations hereunder or otherwise.
5. Installation. Seller shall not provide any materials, labor, or equipment necessary for the installation, assembly, or use of the Products.
6. Limited Warranty. With respect to the Products manufactured by Seller and sold hereunder, Seller warrants to Purchaser that such Products shall be free from defects in material and workmanship for a period of one (1) year from date of shipment by Seller under normal use and service. Seller’s sole obligation under this warranty is limited to repairing or replacing, at Seller’s option, any Product found to Seller’s satisfaction to be defective upon examination by Seller, provided that such Product shall be returned for inspection to Seller’s factory within three (3) months after discovery of the defect. The repair or replacement of defective Products will be made without charge for parts or labor. This warranty shall not apply to: (a) Products not manufactured by Seller; (b) any Product that has been subject to abuse, negligence, accident, or misapplication; (c) any Product altered or repaired by Purchaser or other third parties, or any Product that becomes defective as a result of being integrated into or otherwise combined with another product or system; or (d) normal wear and tear or other normal maintenance requirements and/or the replacement of other consumables (such as washers, gaskets and lubricants). This limited warranty shall extend only to the Purchaser. No action may be brought against Seller for an alleged breach of warranty unless such action is instituted within one (1) year from the date the cause of action accrues. The foregoing limited warranty is conditioned on Purchaser paying the full purchase price for the Products. EXCEPT AS PROVIDED IN THIS SECTION 6, SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SELLER SHALL CREATE A WARRANTY OR IN ANY WAY EXPAND THE SCOPE OF THE FOREGOING LIMITED WARRANTY. THIS SECTION 6 CONSTITUTES THE ENTIRE WARRANTY PROVIDED UNDER THIS AGREEMENT
7. Limitation of Liability. IN NO EVENT SHALL SELLER OR ITS AFFILIATES BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF GOODWILL OR BUSINESS REPUTATION, BUSINESS INTERRUPTION, LOSS OF DATA, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT, OR FOR ANY CLAIM BY ANY THIRD PARTY, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, ERRORS AND OMISSIONS OR STRICT LIABILITY) OR OTHER THEORIES OF LAW, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE SHALL FAIL OF ITS ESSENTIAL PURPOSE. THE MAXIMUM AGGREGATE LIABILITY OF SELLER (AND ITS AFFILIATES) ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING FOR CLAIMS RELATING TO BREACH OF CONTRACT, BREACH OF WARRANTY (INCLUDING THE COST OF REPAIRING OR REPLACING EQUIPMENT), TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY AND ERRORS AND OMISSIONS) OR ANY OTHER CAUSE OR FORM OF ACTION SHALL NOT EXCEED THE AMOUNT OF AGGREGATE PURCHASE PRICE ACTUALLY RECEIVED BY SELLER WITH RESPECT TO THE PARTICULAR PURCHASE ORDER TO WHICH THE CLAIM OR CAUSE OF ACTION RELATES.
8. Confidentiality. All drawings, designs, specifications, manuals and programs furnished to Purchaser by Seller shall remain the confidential and proprietary property of Seller. All such information, except as may be found in the public domain, shall be held in strict confidence by Purchaser and shall not be reproduced nor disclosed by Purchaser to any third parties. Copyright in all materials made available by Seller shall remain in Seller at all times.
9. FORCE MAJEURE.Seller's obligations hereunder are subject to, and Seller shall not be held responsible for, any delay or failure to make delivery of all or any part of the Products due to labor difficulties, fires, casualties, accidents, acts of the elements, acts of God, transportation difficulties, delays by a common carrier, inability to obtain Products, materials or components or qualified labor sufficient to timely perform part of or all of this Agreement, governmental regulations or actions, strikes, damage to or destruction in whole or part of manufacturing plant, riots, civil commotions, warlike conditions, flood, tidal waves, typhoon, hurricane, earthquake, lightning, explosion, or any other causes, contingencies, or circumstances anywhere in the world not subject to the Seller's control which prevent or hinder the manufacture or delivery of the Products. In the event of the occurrence of any of the foregoing, at the option of Seller, Seller shall be excused from the performance of this Agreement or the time for Seller’s performance to be completed shall be extended.
10. MISCELLANEOUS PROVISIONS. This Agreement constitutes the entire agreement between Seller and Purchaser as it relates to transactions contemplated hereby (including under any purchase orders submitted hereunder) and supersedes any and all prior oral or written agreements, correspondence, quotations or understandings heretofore in force between the parties relating to the subject matter hereof. There are no agreements between Seller and Purchaser with respect to the Products herein except those specifically set forth in and made part of this Agreement. Any additional terms, conditions and/or prices are rejected by Seller. If any term or condition or part of this Agreement is held invalid, the remaining terms and conditions of this Agreement shall not be affected thereby. No claim arising out of any breach of this Agreement may be discharged in whole or in part by waiver or renunciation of such claim unless such waiver or renunciation is in writing and signed by the parties hereto. All rights available to Seller under the Uniform Commercial Code or other governing trade terms, except as specifically limited or excluded herein (even though not specifically enumerated), are reserved to Seller as remedies available in the event of default of Purchaser.