Vernon Tool Company
Terms, Conditions, Warranty and Delivery
The terms and conditions contained herein form a part of every contract to which The Vernon Tool Company, hereinafter called the “Seller” or “Vernon”, is a party, and which relates to the manufacture, sale, or delivery of equipment by Vernon, including every quotation issued by Vernon or a Vernon approved distributor and every order acceptance or order acknowledgment. The terms and conditions contained herein shall take precedence over any and all other conditions, terms, or provisions, and no contrary, additional, or different conditions, terms, or provisions shall be binding on Vernon whether contained in the buyer’s, hereinafter called the “Buyer”, purchase order or otherwise.
Prices are based on 60% due upon order and 40% due upon Buyer’s Acceptance, as defined below, at Vernon’s factory or other Vernon designated location; no cash discounts allowed. Vernon may change the payment terms in its sole discretion.
Orders received against quotations made by Vernon or its international distributors will be invoiced at those prices valid at time of quotation. Quotations are valid for 30 days from the original date of the quotation. All orders are subject to receipt of amounts due upon order and final acceptance by Vernon at the Vernon’s office. All orders accepted by Vernon cannot be cancelled by the Buyer without payment in full for the complete system to Vernon. Vernon reserves the right to retain all amounts previously paid by Buyer and to bill Buyer for any amounts not previously paid along with any costs incurred as a result of Buyer’s order cancellation.
The Vernon also reserves the right to change prices as well as terms and conditions of sale at any time without notice. Prices do not include taxes/duties and all prices are subject to the addition of any tax/duty which Vernon at any time is required by law to pay or collect by reason of the sale, purchase, rental, loan or use of the products. Shipping and handling charges will be prepaid and added to Buyer’s invoice.
Vernon reserves the right to bill late payment charges of 1.5% per month on Buyer’s past due invoices as well as to revoke terms on future orders. Prices include domestic packing or packaging per the Vernon’s standard practice.
TRANSFER OF TITLE
Title to the goods shall transfer from Vernon to Buyer upon tender of the goods to the first transportation carrier at the Vernon’s shipping location.
RISK OF LOSS
Risk of loss transfers from Vernon to Buyer when the goods are tendered to the first transportation carrier. Carrier is defined as the entity which provides transportation services, including but not limited to, transportation from the point of receipt to point of destination.
Risk of loss transfers from Vernon to Buyer when the goods are tendered to the carrier in the port of shipment. Carrier is defined as the entity, named on the face of the international bill of lading, which provides transportation services from the port of shipment to port of destination.
SHIPPING AND DELIVERY
The time estimates provided for shipment to Buyer are approximated, and are based upon prompt receipt of pertinent data, any Vernon purchased component parts, Buyer’s Acceptance and scheduling in Vernon’s factory. Vernon will ship completed systems upon completion of Factory Acceptance Tests and receipt of Buyer’s Acceptance as acknowledged by Buyers with payment in full for the completed system. Vernon shall use commercially reasonable efforts to make delivery in accordance with the estimated time provisions, but Vernon shall not be liable for any penalties or damage of any kind if the anticipated shipment schedule cannot be met.
All shipment are made F.O.B: Seller’s shipping location (all charges will be pre-paid by the Vernon and added to the Buyer’s invoice).
The Vernon’s preferred terms of sale are “CPT: Destination Port” under INCOTERMS® 2010 (all charges will be pre-paid by the Vernon and added to the Buyer’s invoice).
All complete systems are subject to a final factory acceptance testing (“Factory Acceptance Test”) at the Vernon’s facility or other Vernon designated location to verify that the complete system operates as designed. Vernon shall provide the Factory Acceptance Test records including a digital picture diary and digital video of the system operation to the Buyer. Upon the successful completion of the Factory Acceptance Test, Buyer will pay all amounts in full, within 10 days, for the completed system which acknowledges that the complete system functions as designed (“Acceptance”). Buyer must make final payment within 10 business days from completion of the Factory Acceptance Test. Failure to do so will result in a storage charge of 1% of the P.O. price per month.
TRAINING AND ONGOING SUPPORT
Upon successful installation of the complete system by the Buyer at the Buyer’s facility, and within one year of shipment, the Seller shall make available to the Buyer a technical representative at the Buyer's site to conduct training of operational and maintenance personnel as provided for in Vernon’s quote for the complete system. The Buyer is responsible for all travel and lodging costs. The Vernon agrees to provide reasonable telephone support to the Buyer’s operational and maintenance personnel. Vernon will not have any obligation to perform training after one year from shipment. Further, Vernon will not refund any amounts previously paid if Buyer does not complete training.
FOREIGN CORRUPT PRACTICES ACT
Vernon expects that the Buyer shall comply with all applicable U.S. and foreign laws including the U.S. Foreign Corrupt Practices Act, which prohibits the payment or transfer of anything of value to governments, government officials, political parties, political party officials (or relatives or associates of such officials), whether directly or indirectly, to obtain or retain business. A summary of the law and related information can be found at http://www.justice.gov/criminal/fraud/fcpa .
U.S. EXPORT CONTROL LAWS
The U.S. government imposes and enforces various requirements and restrictions relating to the export, transshipment, re-export or other transfers of U.S.-origin commodities, software, technology and services, and certain non-U.S.-origin items that incorporate, or are derived from or based on U.S.-origin items (referred to as the “U.S. export control laws”). In particular, the U.S. export control laws restrict the transfer of subject items to designated end users, end uses and destinations. The U.S. export control laws and related information can be found at http://www.access.gpo.gov/bis/ear/ear_data.html and http://www.treas.gov/offices/enforcement/ofac/ . Vernon expects that the Buyer shall comply with all U.S. export control laws relating to the goods that it purchases.
GOVERNING LAW and CISG
All sales shall be governed by and construed under the laws of the State of Ohio, U.S.A. (including the Uniform Commercial Code as incorporated into the laws of the State of Ohio, U.S.A.), without regard to its conflict of laws provisions and without regard to the United Nations Convention on Contracts for the International Sale of Goods (“CISG”).
Vernon shall not be liable to the Buyer for any delay in any performance or for failure to render any performance, and any such delay or failure shall for all purposes be excused, when such delay or failure is directly or indirectly caused by governmental laws or regulations (whether or not valid); acts of war; acts of government; acts of God; acts of terrorism; sabotage; civil disturbances; strikes or other labor disturbances; equipment failure; the inability to procure raw materials, power, equipment, labor or other supplies on an economic basis; explosions; accidents; transportation delays or shortages; floods; landslides; epidemics; or similar or dissimilar events which events are beyond the reasonable control of Vernon, in any of the foregoing cases whether or not foreseeable (collectively, “Force Majeure Events”). In expansion, and not limitation, of the foregoing, a Force Majeure Event shall be deemed to delay or prevent performance if it directly or indirectly causes the timely performance by Vernon of any of its obligations to be commercially impracticable. Vernon shall not be denied relief under this paragraph if it fails to avoid or resolve any Force Majeure Event, except to the extent that it fails to employ commercially reasonable efforts to avoid or resolve such event, which efforts shall not be required to include the expenditure of funds. Upon the occurrence of any event or circumstance referenced above, Vernon shall have the right to allocate products among its customers in its sole discretion. This paragraph shall be effective and apply even if the Force Majeure Event invoked by Vernon had been in effect on the date a particular order for products was accepted by Vernon. This paragraph supplements, and does not replace, any remedies available to Vernon under applicable law.
Confidential Information. Vernon and Buyer shall keep confidential these Terms and Conditions and all technical and business information disclosed to other (“Receiving Party”), directly or indirectly, by Vernon or the Buyer (“Disclosing Party”) or developed by the Receiving Party from such information (“Confidential Information”) for a period of seven (7) years from disclosure of such Confidential Information . Confidential Information may include, but is not limited to, proprietary materials, technical know-how, technical specifications, software code, manners of conducting business and operations, strategic business plans, systems, results of testing, financial information, customer lists and other customer information, product information, concepts, and compilations of data. Confidential Information does not include information that: (a) is in the public domain, other than by a breach of this clause by the Receiving Party; (b) the Receiving Party can show was received from an independent third party lawfully in possession of the information and under no obligation of confidentiality to the Disclosing Party regarding the information; or (c) the Receiving Party can show was independently developed by the Receiving Party without use of the information obtained, directly or indirectly, from the Disclosing Party.
Vernon and the Buyer will use the other’s Confidential Information only to perform their obligations under, and for the purposes of, this Agreement. The Receiving Party will maintain the confidentiality of the Disclosing Party’s Confidential Information in the same manner in which it protects its own information of like kind, but in no event will either party take less than commercially reasonable precautions to prevent the unauthorized use or disclosure of the Confidential Information.
Product Limited Warranty
Vernon warrants to the Buyer that all components and parts of its complete systems are free from defects in material and workmanship which result in breakdown or other failure under normal use. This warranty is void if the complete system has been subjected to improper installation, improper care or abnormal operations.
Vernon will assume labor expenses of correcting defects for a period of six (6) months from date of shipment to Buyer. Vernon will assume the parts expense of correcting defects for a period of one (1) year from date of shipment to Buyer. All components purchased by Vernon carry the original manufacturer's warranties and guaranties. Upon notification of non-conforming or inoperative parts, Vernon reserves the right to inspect and is liable only for the repair and/or replacement of such parts. Vernon’s obligation during the warranty periods under this warranty shall be limited to the repair or replacement at its option of any components or parts thereof which Vernon's examination proves to be defective.
The Buyer is responsible for shipping charges to Vernon’s factory for all warranty repairs. This warranty does not apply to any equipment or component thereof which has been subject to misuse or accident or improper installation, maintenance or application, or to any parts which are subject to wear and deterioration under normal circumstances such as lenses, fuses, lamps, scrapers, electrodes, shunts, emitters, cutting nozzles and the like. This warranty similarly does not cover routine mechanical, electrical and electronic adjustment such as are described and explained in the instruction manuals furnished with the machines. Such adjustments are the responsibility of the Buyer.
This warranty also does not cover the repair and/or replacement of electrical or electronic parts damaged by improper voltage supplies, improper electrical connections to the machine or improper electrical grounding techniques. Arc welding performed on any part of any machine without the express approval of a Vernon representative, or authorized substitute, will automatically void this warranty.
Where the sale of equipment includes computer software, Vernon warrants the diskette or other means of delivering the software and documentation to be free of defects in materials and workmanship for a period of 90 days from the date of purchase. Upon notification in writing of defects in material or workmanship, Vernon will replace the defective documentation or diskette or other means of delivering the software.
This warranty shall be limited to replacement and shall not include any other damages, including but not limited to loss of profit, special, incidental, consequential or other damages. This warranty and the obligations and liabilities of Vernon hereunder are exclusive and in lieu of, and the Buyer hereby waives, all other remedies, warranties, guarantees or liabilities, express or implied, arising by law or otherwise (including, without limitation, any obligations of Vernon with respect to fitness of the machines for a particular use or purpose, merchantability of the machines and consequential damages), or whether or not occasioned by Vernon's negligence. This warranty may not be extended, altered or varied except by a written instrument signed by a duly authorized officer of Vernon.
VERNON WILL NOT ACCEPT RESPONSIBILITY OR LIABILITY FOR REPAIRS MADE WITHOUT VERNON’S AUTHORIZATION DURING THE WARRANTY PERIOD.
VERNON’S LIABILITY UNDER THIS WARRANTY SHALL NOT EXCEED THE COST OF CORRECTING THE DEFECT OF THE VERNON PRODUCT.
VERNON WILL NOT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES (SUCH AS LOSS OF BUSINESS, ETC.) CAUSED BY THE DEFECT OR THE TIME INVOLVED TO CORRECT THE DEFECT.
THIS WRITTEN WARRANTY IS THE ONLY EXPRESS WARRANTY PROVIDED BY VERNON WITH RESPECT TO ITS PRODUCTS. WARRANTIES IMPLIED BY LAW, SUCH AS THE WARRANTY OF MERCHANTABILITY, ARE LIMITED TO THE DURATION OF THIS LIMITED WARRANTY FOR THE EQUIPMENT INVOLVED.
THIS WARRANTY GIVES THE BUYER SPECIFIC LEGAL RIGHTS. THE BUYER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.