The terms and conditions of sales as set forth below will be the only terms and conditions that will apply to and govern any purchase order accepted by Plasma-Tec despite any terms or conditions to the contrary incorporated on Buyer’s purchase order forms or order blanks and/or otherwise specified by Buyer. Any term or condition in any Buyer’s purchase order or other form in conflict with these terms or conditions is hereby expressly rejected and shall not be binding on Plasma-Tec.
Prices for goods and services provided by Plasma-Tec are set by Plasma-Tec and are subject to change without notice prior to acceptance of Buyer’s order by Plasma-Tec. The price does not include any federal, state or local property, license, privilege, sales, use, excise, gross receipts, value added or other like taxes which may be applicable to or imposed upon to, or imposed upon, the transaction, the goods, or the sale, transportation, delivery, value or use thereof, or any services performed in connection therewith. Such taxes are for the account of the Buyer and the Buyer agrees to pay or reimburse such taxes which Plasma-Tec, its contractors or suppliers are required to pay. Such applicable taxes and other charges known to Plasma-Tec, will be included in Plasma-Tec’s invoice as a separate item, which Buyer agrees to pay, or, in the case of taxes, to supply Plasma-Tec with appropriate tax exemption certificates in a form satisfactory to Plasma-Tec.
All goods shall be shipped to Buyer FOB point of shipping. Risk of loss and/or damage and title to the goods will pass to Buyer upon delivery to the carrier. Unless Buyer has designated a carrier, Plasma-Tec will select the carrier with the express understanding that the carrier is not the agent of Plasma-Tec. The carrier shall be deemed to be the agent of the Buyer. Plasma-Tec may ship your order in one or more installments, which Buyer agrees to accept and pay for, unless Buyer has provided Plasma-Tec with prior written notification that Buyer will not accept partial shipments.
Plasma-Tec warrants to Buyer, as original owner, that goods to be supplied under this Agreement will conform to the description of any purchase order and will be free from defects in materials and workmanship. This warranty will be valid for a period of 1 year. Buyer’s exclusive remedy against Plasma-Tec for any defects in materials or workmanship shall be the replacement or repair of the defective goods, or the repayment of the purchase price upon return of the goods. Goods may be returned at the cost of Plasma-Tec only after an inspection and approval by Plasma-Tec and upon receipt by Buyer of definite shipping instructions from Plasma-Tec. No back charging by Buyer is allowed for repair work done by Buyer, unless authorized in writing by Plasma-Tec. Every claim on account of defective goods, short count, or for any other cause, shall be deemed waived by Buyer unless made in writing within thirty (30) days from the date of shipment of goods to which such claim relates. This warranty does not apply to goods that have been damaged by abuse, accident, act of God, misuse, misapplication, improper installation, or shipment, or that have been modified by the Buyer. No oral or written information or advice given by Plasma-Tec or its agents will create a warranty or increase the scope of this warranty. In no event will Plasma-Tec be liable to Buyer for exemplary, incidental, indirect, special or consequential damages of any kind, including without limitation loss of profit, good will, use, savings, revenue or property damage, whether or not Plasma-Tec has been advised of the possibility of such loss, however caused and on any other theory of liability arising out of these terms and conditions, sale or use of goods, or Buyer’s relationship with Plasma-Tec. Plasma-Tec’s liability arising out of these terms and conditions, sale or use of goods, or Buyer’s relationship with Plasma-Tec, including without limitation, any and all claims combined, will not exceed the amount of the purchase price for the goods and services provided. In no event will Plasma-Tec be liable for the costs of procurement of substitute goods by Buyer or any other person or entity. The limitations in this section will apply notwithstanding the failure of essential purpose of any limited remedy. This warranty is in lieu of and Plasma-Tec disclaims all other warranties, express, implied, or otherwise including without limitation, any warranty of merchantability, fitness for a particular purpose, or non-infringement.
Upon default by Buyer, Buyer agrees to reimburse Plasma-Tec all attorney fees and court costs incurred by Plasma-Tec in connection therewith. Buyer agrees that any of the following shall constitute an event of default which shall enable Plasma-Tec, at its option, to cancel any unexecuted portion of this order or to exercise any right or remedy which it may have by law: (a) the failure of Buyer to perform any term or condition contained in these terms; (b) any failure of Buyer to give required notice; (c) the insolvency of Buyer or its failure to pay debts as they mature, an assignment by Buyer for benefit of its creditors, the appointment of receiver for Buyer or for the materials covered by this order or the filing of any petition to adjudicate Buyer bankrupt; (d) the dissolution or termination of existence of Buyer; (e) a failure by Buyer to provide adequate assurance of performance within ten (10) days after a justified demand by Plasma-Tec or (f) if Plasma-Tec, in good faith, believes that Buyer's prospect of performance under this Agreement is impaired. All rights and remedies of Plasma-Tec under these terms, are in addition to, and shall not exclude, any rights or remedies that Plasma-Tec may have by law.
Except to the extent caused by Plasma-Tec’s breach of warranty, Buyer shall defend, indemnify and hold harmless Plasma-Tec, its employees, officers and directors, and their respective successors and assigns from and against any and all liability, damages, claims, causes of actions, losses, costs and expenses (including attorneys' fees) of any kind (collective “Damages”) arising out of injuries to any person (including death) or damage to any property caused by or related to the goods or any negligent act or omission of Buyer, its employees or agents. Buyer shall indemnify and hold harmless Plasma-Tec and each of its agents from and against any and all Damages, royalties and license fees arising from or for infringement of any patent by reason of any sale or use of goods or the manufacturer of the goods to Buyer specifications or sample. Upon the tendering of any of the foregoing suits or claims to Buyer, Buyer shall defend the same at Buyer’s expense. The foregoing obligations of Buyer shall apply whether Plasma-Tec or Buyer defends such suit or claim.
In the event Buyer requests Plasma-Tec to stop work or cancel the order or any part thereof, there shall be a minimum cancellation charge of 15% of the invoice amount of this cancelled order. Work already scheduled, in progress or completed will be billed at cost incurred plus a 15% handling charge.
In the event this contract requires Plasma-Tec to perform work on materials supplied by Buyer, Buyer shall supply adequate excess to allow for manufacturing losses. If Plasma-Tec scraps any such material, it shall not be liable to Buyer for such scrapped materials.
Plasma-Tec reserves the right to determine whether or not products shipped to us are salvageable.
This document constitutes the entire agreement between the Buyer and Plasma-Tec with respect to the subject matter hereof and supersedes all other representations or understandings. The terms and conditions contained herein may not be added to, modified, or superseded or otherwise altered except by a written modification signed by a duly authorized officer of Plasma-Tec. If any provisions of this agreement shall be deemed invalid by a court of law, the remaining provisions shall continue in full force and effect, and shall be construed to serve the intent and purposes of this agreement.
The terms and conditions applicable to the transaction provided for herein shall be determined and construed in accordance with, and shall be governed by, the laws of the State of Michigan. Buyer and Plasma-Tec agree to submit to the jurisdiction of the appropriate State or Federal Court within Michigan for purposes of resolving any dispute or claim arising in connection with said transaction. All actions, regardless of form, arising out of or related to this transaction or the products sold hereunder must be brought against Plasma-Tec within the applicable statutory period, but in no event more than ONE (1) YEAR after the date of invoice.