Any transaction between QA Technology Company, Inc. (hereinafter “QA”) and a Purchaser (hereinafter “Purchaser”) is subject to these terms and conditions. These terms and conditions are intended by the parties to be the final expression of their agreement with respect to the terms of their transaction. Submittal of a purchase order to QA by Purchaser shall constitute acceptance by Purchaser of these terms, and payment of earlier invoices for prior transactions on these terms shall also be deemed evidence of acceptance of these terms.
Subject to Section 16 [“Delays in Matters Beyond QA’s Control”], these terms and conditions may only be modified by a written agreement duly signed by persons authorized to sign agreements on behalf of QA and the Purchaser or as modified on QA’s quote. These Terms of Sale contain the complete and exclusive agreement between the parties, and supersede any and all prior course of dealing, course of performance or usage of trade or oral or written agreements.
ANY TERMS ON PURCHASER'S PURCHASE ORDER OR OTHER FORM, REGARDLESS OF WHETHER COMMUNICATED BEFORE OR AFTER THIS TERM SHEET, WHICH ARE INCONSISTENT WITH THE TERMS SET FORTH HEREIN SHALL NOT APPLY.
1. Price. Purchaser promises to pay the price described on QA’s invoice on or within thirty days after the date of such invoice, or in compliance with such other due date as is set forth in such invoice. In the event that the Purchaser fails to timely pay, then the Purchaser shall pay QA the costs incurred by QA as a result of that breach including, without limitation, attorneys’ fees, court costs, stenographic costs, expert fees, and all other costs of collection.
2. Security. To secure payment of the purchase price, Purchaser hereby grants to QA a security interest in the goods purchased. The security interest described herein is in addition to, and supplemental to, the rights that QA may otherwise have at law or in equity. The Purchaser authorizes QA to record a Uniform Commercial Code Financing Statement describing said goods and to notify Purchaser’s prior secured creditors. QA shall have all of the rights and remedies of a secured party under Article 9 of the Uniform Commercial Code. A copy of QA’s invoice may be filed as a financing statement.
3. Right to Cease Shipments.In the event the Purchaser fails to pay any amount due to QA as and when due, QA may, in addition to all of its other rights and remedies at law or in equity, cease all shipments to Purchaser, recall any shipments in transit, and demand the return of any product shipped to the Purchaser and not yet paid for.
4. Inspection. Purchaser agrees to inspect the goods under QA’s invoice upon receipt. All goods retained by the Purchaser after the tenth day following receipt shall be deemed accepted.
5. Limited Warranty of QA. Products covered by QA’s invoice are sold upon the following terms and the following terms only (except for “NO-LUBE” Probes): QA warrants to the original purchaser, and to no others, that the product is free from defects in material and workmanship for a period of ninety days from the original date of purchase if not misused or abused in QA’s opinion. QA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The Purchaser’s sole remedy in the event of a breach of any warranty contained herein shall be that QA shall at QA’s option either repair or replace the defective product. Under no circumstances shall QA’s liability exceed the amount paid by Purchaser as the purchase price.
6. "NO-LUBE" PROBES are sold AS IS, without warranty. The Purchaser agrees that its use of “NO-LUBE” Probes is at its sole risk and expense. With respect to “NO-LUBE” Probes, QA DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.
7. Limitations and Damages Disclaimer. QA shall not be liable to the Purchaser, or any third party, for any special, consequential, incidental, exemplary or indirect costs or damages, including without limitation, legal costs, installation and removal costs, lost production or lost profit arising from any cause whatsoever, regardless of the form of the action, whether in contract, tort (including negligence), strict liability or otherwise, even if advised of the possibility of such costs or damages. For the purposes of this provision, “QA” includes QA Technology Company, Inc.’s directors, officers, employees, agents, representatives, subcontractors, and suppliers.
8. Applications Responsibility. QA products may be applied and used as components in larger assemblies, for which QA has no knowledge or control over the risks of installation, application or use of such QA products. The Purchaser acknowledges and agrees that it is solely responsible for all known and unknown risks of installation, application and use of such QA products or inability to use them and for compliance with all legal, regulatory and safety-related requirements concerning its products and any use of QA Products in the Purchaser’s applications, notwithstanding any applications-related information or support that may be provided by QA.
9. Choice of Law. QA’s invoice and the relationship between the parties shall be governed and construed in accordance with the laws of the State of New Hampshire. The parties hereto consent to the jurisdiction of the state and federal courts located therein. The parties agree that this transaction is a business transaction and not a consumer transaction. Any action against QA shall be maintained only in courts in the State of New Hampshire.
10. Tax. In the event that any state with jurisdiction over a transaction with QA imposes a sales tax, excise tax or other tax upon this transaction, then, the Purchaser shall pay the amount of said tax.
11. Risk of Loss. All transactions described in QA’s invoice are FOB Hampton, New Hampshire. The Purchaser shall pay the shipping. The Purchaser shall obtain insurance. The Purchaser shall bear the risk of loss or damage in transit.
12. Product Return Policy. At its sole discretion, QA may authorize the return of standard product (and standard product only) for credit against future purchases on the following terms: (a) there shall be no cash refunds. (b) There shall be a 20% restocking charge. (c) There shall be no return if the Purchaser is in default of any obligation owed to QA. (d) The Purchaser must obtain prior authorization and a Return Material Authorization Number from QA. (e) The product must have been purchased by Purchaser within three (3) months of the date returned. (f) The product must be in its original sealed and unopened plastic bag or container with all labels. (g) The product must be adequately packaged for shipment. (h) QA will accept product for return only on a satisfactory inspection of the product on return. (i) The Credit shall be based on the original price when shipped less all freight (if any) paid by QA.
13. Non-Returnable / Non-Cancelable Products. Certain products are made to order and therefore cannot be returned or cancelled – (1) Non-Catalog Items (Part numbers containing QXXX); (2) Catalog Items as follows: Non-Lubricated (-N); Curved Probe Tubes (-B); Decreased Stroke (-D); Ultra (U); High Preload (E/F/B); Light (L) Spring Forces; 100-12 series and 100-15 series (H, L and X) spring forces; Factron Tubes (F); Products which include wire cut to length (CXXXX) and Tools set to customer specifications.
14. Special Tooling. Title to dies, tools, jigs, fixtures, patterns or any other type of special tooling shall remain vested in QA, whether or not paid for or amortized over the products manufactured hereunder for the Purchaser.
15. Blanket Orders. Purchaser is liable for the purchase and release of all standard and non-standard product(s) ordered/released within a twelve (12) month period. Any remaining quantities at the end of such time will be shipped and invoiced accordingly.
16. Delays in Matters Beyond QA's Control.If QA is delayed or prevented from delivering products to Purchaser due to any cause beyond QA’s control, then the period of performance shall be extended. Further, when unforeseeable changes have occurred that are beyond the control of QA and affect price or delivery, then QA retains the right to change its prices accordingly and to alter the delivery schedule for the products.
17. Quantities. For non-standard items QA reserves the right to over or under ship the quantities ordered by 10%., unless QA otherwise specifically agrees in writing.
18. Non-Waiver. These terms and conditions set forth the entire understanding between the parties with reference to the subject matter hereof. The failure of QA to enforce at any time any of the provisions hereof shall not constitute a waiver of such provision or a waiver of the rights to enforce the right to enforce any or all provisions at another time.
19. Severability.If any provision of these terms and conditions is found to be in violation of any Federal, State or local statue or regulations, or is illegal for any reason, said provision shall be self deleting without affecting the validity of the remaining provisions.
DESTINATION CONTROL STATEMENT.
“These items have been exported in accordance with the Export Administration Regulations. Diversion contrary to U.S. law is prohibited.”