FREQUENCY DEVICES, INC. (FDI)
Terms and Conditions of Sale
The following are terms and conditions under which Frequency Devices, Inc. (hereinafter called F.D.I.)sells its products:
1. PRICES: Prices quoted by F.D.I. are subject to change without notice after thirty (30) days from the date of quotation. All prices are subject to adjustment on account of any changes to specifications, quantities, shipment arrangements or other terms and conditions which are not part of the original price quotation.
2. TAXES: Prices are exclusive of all excise, sales, use and other applicable taxes imposed by any federal, state or municipal or other government in connection with the production, processing, sale, use, shipment or delivery of products by F.D.I. and all such taxes shall be added to the price and paid by the purchaser. The purchaser shall be responsible for obtaining and providing to F.D.I. or pursuing any certificate of exemption or similar document required to exempt a sale from sales, use or similar tax liability.
A. Delivery will be made F.O.B., F.D.I.'s plant. The time of delivery is the time when the product to be delivered is ready for pick-up by the purchaser or its carrier.
B. F.D.I. shall not be liable for any damages or penalty for delaying in delivery or failure to give notice of delay when such delay is due to the elements, acts of God, acts of purchaser, acts of civil or military authority, priorities, fires or floods, epidemics or quarantine restrictions, war, riots, strikes, lockouts, breakdowns, differences with workmen, accidents to machinery, car shortages, delays in transportation, delay in delivery by F.D.I. vendors or buyers or any other cause beyond the reasonable control of F.D.I. The scheduled delivery shall, in such event, be extended by a period of time equal to the time lost because of any delay which is excusable under this clause.
C. Ownership of products shall pass to the purchaser upon delivery thereof by F.D.I. to the purchaser or its carrier; provided that the purchaser does hereby grant to F.D.I. a security interest in the products as security for the performance by the purchaser of all its obligations hereunder together with the right, without liability, to repossess the products, with or without notice, in the event of default of any such obligations.
D. Products held or stored by F.D.I. for the purchaser shall be at the sole risk of the purchaser, and the purchaser shall be liable for the expense to F.D.I. of holding or storing products at the purchaser's request.
E. Any purchaser which requires multiple delivery may propose a schedule on the face of the order but in no case shall the shipment schedule exceed one year.
4. SHIPMENT: In the absence of specific instructions to the contrary, F.D.I. will select the carrier or other means of transportation and routing for shipment of its products; but by so doing, F.D.I. will not thereby assume any liability in connection with shipment, nor shall the carrier in any way be construed to be the carrier of F.D.I. Products shall be at the purchaser's entire risk after delivery by F.D.I., to the carrier, and all insurance and transportation charges will be paid for by the purchaser.
5. PAYMENT: Terms are cash on or prior to delivery. You may apply for and F.D.I. may grant open account credit. Any payment terms extended are subject to modification by F.D.I. on written notice. In addition, F.D.I. may require you to provide a deposit for this order. F.D.I. will issue invoices on delivery in the case of all products; and if deliveries are authorized in installments, each shipment shall be invoiced and paid for when due without regard to the scheduled deliveries. In the event any invoice is not paid within the payment terms granted. Buyer shall pay interest on all unpaid charges at the rate of 1.5% per month (or legal maximum) computed from the date of each invoice until the date of payment. In addition, Buyer shall be responsible for all cost of collection including, without limitation, court costs and reasonable attorney's fees.
DATE OF INVOICE. F.D.I. reserves the right at any time to revoke any credit extended to the purchaser for any risk deemed good and sufficient by F.D.I. F.D.I. will issue invoices on delivery in the case of all products: and if deliveries are authorized in installments, each shipment shall be invoiced and paid for when due without regard to the other scheduled deliveries.
6. RETURNS AND CANCELLATIONS:
A. Purchase orders accepted by F.D.I. shall be subject to cancellation by the purchaser upon no less than ten (10) days prior written notice received by F.D.I. and such cancellations shall not apply to any products delivered or shipped by F.D.I. during such period. No returns will be accepted for credit or exchange without the prior approval of F.D.I.
B. All cancellations hereunder shall be subject to reasonable charges or special conditions including without limitation price changes or special conditions detailed on any individual quotation. Due to the nature of product, determining cancellation damages is difficult thus the following schedule of liquid damages apply:
a.90-61days prior to scheduled delivery-0%
b. 60-31 days prior to scheduled delivery-50%
c. 30 days prior to scheduled delivery-100%
d. for blanket orders 100% liquid damages will apply after initial release.
7. PATENTS AND TRADEMARKS: No sale of any product hereunder shall be construed as granting the purchaser any license or other right in or to any patent applicable to such product. The purchaser agrees to notify F.D.I. of all claims that any F.D.I. product infringes a United States patent or trademark. If notified promptly in writing of any action (and all prior claims relating to such action) brought against the purchaser based on a claim that the product infringes, a United States patent or based upon a claim resulting from F.D.I.'s failure to mark or brand any item (unless such marking or branding was omitted at the purchaser request). F.D.I. will defend such action at its expense and will pay the costs and damages awarded in any such action provided that F.D.I. shall have had sole control of the defense of any such action and all negotiations for its settlement or compromise. In the event that a final injunction shall be obtained against the purchaser's use of the product or any of its parts by reason or infringement of a United States patent or if in F.D.I.'s opinion that product is likely to become the subject of claim of infringement of United States patent, F.D.I. will, at its option and at its expense, either procure for the purchaser the right to continue using the product, replace or modify the same so that it becomes noinfringing, or grant the purchaser a credit for such product as depreciated and accept its return. The depreciation in such event shall be an equal amount per year over the lifetime of the product as established by F.D.I. F.D.I. shall not have any liability to the purchaser under any provisions of this clause if any patent infringement, trademark infringement or claim thereof, is based upon the use of the product in combination with equipment or devices not made by F.D.I. or in a manner for which the product was not designed. No cost or expenses shall be incurred for the account of F.D.I. without the written consent of F.D.I. The foregoing states the entire liability of F.D.I. with respect to infringement of patents by the equipment or any part thereof or by their operation.
8. WARRANTY AND EXCLUSION OF WARRANTY:
A. Unless otherwise specified in writing by F.D.I. all F.D.I. products sold hereunder are warranted against defects in workmanship and material under normal use and service for a period of one (1) year from the date of delivery, except that, where applicable liability for defective components purchased by F.D.I. and resold to the purchaser hereunder shall conform and be limited to the obligations prescribed by the original manufacturer's warranties applicable to such components.
B. All warranties hereunder are contingent upon proper use in the application for which the product was intended and do not cover products which have been modified or repaired without F.D.I. approval or which have been subjected to neglect, accident, improper installation or application or on which the original identification marks have been removed or altered. These warranties will not apply if adjustment, repair or parts replacement is required because of accident, neglect, misuse, power failure, transportation or other causes other than ordinary use.
C. F.D.I.'s responsibility under the above warranty shall be limited to the repair or replacement, at F.D.I.'s option, free of charge to the purchaser, of any component which fails during the one-year period; providing that the purchaser has promptly reported such failure to F.D.I. in writing and F.D.I. has, upon inspection, found such components to be defective. The purchaser must obtain shipping instructions for the return of any item under this warranty provision and compliance with such instruction shall be a condition of this warranty.
D. EXCEPT FOR EXPRESS WARRANTIES STATED ABOVE F.D.I. DISCLAIMS ALL WARRANTIES WITH REGARD TO THE PRODUCTS SOLD HEREUNDER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS.
9. LIMITATION OF LIABILITY: Expressed warranties stated herein are in lieu of all obligations or liabilities on the part of F.D.I. for damages, including but not limited to consequential damages arising out of or in connection with the use or performance of the product.
10. SUBSTITUTIONS AND MODIFICATIONS OF SPECIFICATIONS: F.D.I assumes the right to make substitutions and modifications in the specifications of products designed by F.D.I. provided that substitutes or modifications will not materially affect the performance of such products.
11. MISCELLANEOUS: All purchase orders are subject to acceptance by F.D.I. in writing signed by an authorized agent of F.D.I. at its principal offices in Illinois and dispatched to the purchaser by F.D.I.; and any contract made hereunder shall be governed by and be construed in accordance with the laws of the State of Illinois. This contract is not assignable, and any attempt to assign any rights, duties or obligations arising hereunder shall be void. All right and remedies of F.D.I., whether evidenced hereby or by any other contract or instrument shall be cumulative and may be exercised singularly or concurrently. In the event that either party shall on any occasion fail to perform any term of this contract and the other party shall not enforce that term, failure to enforce on that occasion shall not prevent enforcement on any other occasion.
12. MODIFICATION: The foregoing terms and conditions shall prevail and govern F.D.I.'s sale of products not withstanding any proposed addition to or variation from the terms and conditions of any order submitted by the purchaser for any product sold hereunder. Deviations from these terms and conditions are not valid unless confirmed in writing by an authorized agent of F.D.I. at its principal offices in Illinois.
13. FAIR LABOR STANDARDS ACT: We hereby certify that these goods were produced in compliance with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act, as Amended, and of Regulations and Orders of the U.S. Department of Labor under Section 14 thereof.
14. SUPPLEMENTARY TERMS AND CONDITIONS: Supplementary terms and conditions of sales available upon request at the offices of F.D.I., shall be applicable to all sales of products for U.S. Government end-use when the Government contract number is specified on purchaser's order.