1)
Scope
XECO Inc offers to sell and delivery crystal products or services in
accordance with the terms and conditions set forth herein. These Terms
apply to all sales made by XECO unless expressly agreed by XECO Inc in
writing and signed by an officer of XECO Inc. These Terms apply
in lieu of any course or dealing between the parties or usage of trade in the
industry. Terms may conflict with some terms and conditions affixed to the
purchase order or other procurement document issued by the Buyer. In such case,
the Terms contained herein shall govern, and acceptance of Buyer's order is
conditioned upon Buyer's acceptance of the terms and conditions herein,
irrespective of whether the Buyer accepts these conditions by a written
acknowledgement, by implication, or acceptance and payment of products ordered
hereunder. XECO's failure to object to provisions contained in any communication
from Buyer shall not be deemed a waiver of the provisions herein. Any changes in
the Terms contained herein must specifically be agreed to in writing signed by
an officer of XECO before becoming binding on either party.
2)
Price, taxes and quotations
Prices are subject to change upon thirty days written notice to Buyer. Any order
that can be cancelled and rescheduled pursuant to paragraph 6(a) is subject to a
price change immediately. All prices are exclusive of any present or future
sales, revenue or excise tax, value added tax, turnover tax, import duty
(including brokerage fees) or other tax applicable to the manufacture or sale of
any product. Such taxes, when applicable, shall be paid by Buyer unless Buyer
provides a proper tax exemption certificate. Unless otherwise agreed to in
writing by the parties, prices quoted by XECO are those current at the date of
quotation and shall be subject to variation by XECO.
3)
Delivery
Unless otherwise agreed in writing, sales are F.O.B. XECO's facility. XECO may
deliver products in one or more consignment and invoice each consignment
separately. XECO reserves the right to ship product that is not subject to
cancellation in advance of the agreed shipping date. Unless otherwise agreed in
writing, delivery time is not of the essence. Except as specified in 6(b), XECO
does not accept liability for any loss arising from delay in delivery of
products.
4)
Payment terms.
Payment terms shall be net thirty (30) days from the date of invoice. Buyer
agrees to pay interest on any unpaid balance at the higher of the rate of 1% per
month or one twelfth of five percentage points above the annual Federal Funds
rate as specified in the Wall Street Journal on the day the balance
becomes due. Unless otherwise agreed in writing, all payments are to be in
United States dollars. For contracts in Europe or Asia, XECO may require payment
to be secured by an irrevocable letter of credit or a bank guarantee acceptable
to XECO. Where payment is made by letter of credit, all costs of collection
shall be applied to Buyer's account. In the event that XECO is required to bring
legal action to collect delinquent accounts, Buyer agrees to pay reasonable
attorneys fees and costs of suit.
5)
Non-conforming delivery and risk of loss.
Buyer shall notify XECO of any
visible defects, quantity shortages or incorrect product shipments within
fifteen (15) days of receipt of the shipment. Failure to notify XECO in writing
of any visible defects in the products or of quantity shortages or incorrect
shipments within such period shall be deemed an unqualified waiver of any rights
to return products on the basis of visible defects, shortages or incorrect
shipments, subject to Buyer's rights under Section 7.
Seller shall
retain a security interest in the products until Buyer's final payment to Seller
for the products.
Risk in the products shall pass to
Buyer as soon as the products have been placed with a transport agent.
6)
Order cancellation.
a)
Buyers Cancellation for Convenience : Buyer may cancel any order
for convenience on the following terms: (i) For standard products, Buyer may
cancel or reschedule a product without penalty if the cancellation is more than
forty-five (45) days from the Confirmed Shipping Date (as specified in XECO's Order
Acknowledgement or other document); cancellations within 45 days of a Confirmed
Shipping Date must be approved in writing by a XECO sales manager and may be
subject to special charges (ii) For nonstandard parts, custom products, or
standard parts with minimum usage Buyer may cancel or reschedule more than
ninety (90) days from the Confirmed Shipping Date, except that Buyer shall
accept delivery of all such products which are completed at the time of
cancellation or rescheduling. Those nonstandard products which are in the
work-in-process inventory at the time of cancellation or rescheduling shall be
paid for by Buyer at a price equal to the completed percentage of the product
multiplied by the price of the finished product, or manufacturing of such
products completed and shipped, at Buyer’s option. Buyer also shall pay promptly
to XECO the costs of settling and paying claims arising out of the termination
of work under XECO's subcontracts or vendors and any accounting, legal, and
clerical costs arising out of the cancellation.
b)
Buyers Cancellation for Default: Upon written notice to XECO, any
order may be cancelled in whole or in part in accordance with the terms hereof,
because of XECO's failure to deliver products by the Confirmed Shipping Date
(this failure hereinafter called “Default”). Cancellation by Buyer for XECO's
Default, which may entitle Buyer to procurement costs, shall be effective only
upon XECO's failure to correct such Default within a reasonable period of time,
but not less than thirty (30) days after receipt by XECO of written notice of
such Default. Upon cancellation, Buyer, as its sole remedy, may recover from
XECO as damages the difference between cost of procurement from another source
(cover) and the contract price, less expenses saved as a consequence of XECO's
breach. In no event shall these damages exceed ten percent (10%) of XECO's
product price multiplied by the number of products unconditionally (not subject
to cancellation under 6(a)) ordered by Buyer which remain unshipped at the time
of cancellation.
c)
XECO's Cancellation for Insolvency: XECO shall have the right to
cancel any unfilled order without notice to Buyer in the event that Buyer
becomes insolvent, adjudicated bankrupt, petitions for or consents to any relief
under any bankruptcy reorganization statute, or becomes unable to meet its
financial obligations in the normal course of business. Any order that can be
cancelled or rescheduled by Buyer pursuant to paragraph 6(a) may be cancelled or
rescheduled by XECO if notice is given to Buyer.
7)
Limited warranty.
Except as specified below, products sold hereunder shall be free from defects in
materials and workmanship and shall conform to XECO's published specifications
or other specifications as accepted in writing by XECO for a period of one (1)
year from the date of shipment of the products. The foregoing warranty does not
apply to any products which have been subject to misuse, neglect, accident or
modification or which have been plated, mounted, or altered such that they are
not capable of being tested under normal test conditions. XECO shall make the
final determination as to whether its products are defective. XECO's sole
obligation for products failing to comply with this warranty shall be, at its
option, to either repair, replace or issue credit for the nonconforming product
where, within fourteen (14) days of the expiration of the warranty period, (i)
XECO has received written notice of any nonconformity; (ii) after XECO's written
authorization, Buyer has returned the nonconforming product to XECO; and (iii)
XECO has determined that the product is nonconforming and that such
nonconformity is not the result of improper installation, repair or other
misuse. Buyer has obligation to obtain authorization to return
non-conforming product, and then to return such product promptly, as any
authorization expires or is cancelled 30 days after issuance. THE FOREGOING WARRANTY AND REMEDIES ARE EXCLUSIVE AND MADE EXPRESSLY IN
LIEU OF ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR OTHERWISE, INCLUDING
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. XECO DOES
NOT ASSUME OR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN
CONNECTION WITH ITS PRODUCTS. Buyer shall pass this warranty to any third-party
purchaser of XECO products.
8)
Limited liability.
Neither XECO nor Buyer shall be liable for incidental or consequential damages,
including but not limited to, the cost of labor, re-qualifications, rework
charges, delay, lost profits, or loss of goodwill arising out of the sale,
installation or use of any XECO product. If XECO has any liability for breach of
contract, breach of any implied condition, warranty or representation, the
aggregate liability of XECO to Buyer shall be limited in respect of any
occurrence or series of occurrences to the contractual value of the products or
services that are the subject of the contract in dispute.
9)
Patents.
(a) Indemnification: Subject to the limitations herein, XECO will defend
any suit or proceeding brought against Buyer if it is based on a claim that any
product furnished hereunder constitutes an infringement of any U.S., Canadian,
Japanese, EU or EFTA member country intellectual property rights. XECO must be
notified promptly in writing and given full and complete authority, information
and assistance (at XECO's expense) for defense of the suit. XECO will pay
damages and costs therein awarded against Buyer but shall not be responsible for
any compromise made without its consent.
In no event shall XECO's
liability for such damages and costs (including legal costs) exceed the
contractual value of the disputed products
or services.
In providing such defense, or in the event that such product is held to
constitute infringement and the use of the product is enjoined, XECO, in its
discretion, shall procure the right to continue using such product, or modify
it so that it becomes non-infringing, or remove it and grant Buyer a credit for
the depreciated value thereof. XECO's indemnity does not extend to claims of
infringement arising from XECO's compliance with Buyer's design, specifications
and/or instructions, or use of any product in combination with other products
or in connection with a manufacturing or other process. The foregoing remedy is
exclusive and constitutes XECO's sole obligation for any claim of intellectual
property infringement and XECO makes no warranty that products sold hereunder
will not infringe any intellectual property rights.
(b) XECO Retains its Intellectual Property: The sale of any products hereunder
does not convey any license by implication, estoppels or otherwise covering
combinations of the products with other equipment data or programs. The company
retains the copyright in all documents, catalogs and plans supplied to Buyer
pursuant to or ancillary to the contract. Unless otherwise agreed in writing,
Buyer shall obtain no interest in any mask or other tooling used in the
production of any XECO product.
10)
Life support.
XECO's products are not authorized for use as critical components in life
support devices or systems without the express written approval of an officer of
XECO Inc. As used herein: (a) Life support devices or systems are
devices which (i) are intended for surgical implant into the body, or (ii)
directly support or sustain life and whose failure to perform when properly used
can be reasonably expected to result in significant injury to the user; (b) a
critical component is any component in a life support device or system whose
failure to perform can be reasonably expected to cause the failure of the life
support device or system or to affect its safety or effectiveness.
11)
Confidential information.
Except as required by law, neither party shall use (except for purposes
connected with the performance of its obligations hereunder), divulge or
communicate to any third party any information of the other it reasonably knows
to be confidential.
12)
Force majeure.
XECO shall not be liable for any damage or penalty for delay in delivery or for
failure to give notice of delay when such delay is due to the elements, acts of
god, acts of the Buyer, act of civil or military authority, war, riots,
concerted labor action, shortages of materials, or any other causes beyond the
reasonable control of XECO. The anticipated delivery date shall be deemed
extended for a period of time equal to the time lost due to any delay excusable
under this provision.
13)
Export regulations.
Buyer agrees to comply fully with all laws and regulations concerning the
purchase and sale of products. In particular, Buyer agrees to comply with the
Export Administration Regulations of the United States in so far as they apply
to the sale of products. The products are licensed by the United States for
delivery to the ultimate destination as shown on the shipment/invoice address
and any contrary diversion is prohibited.
14)
Assignment and subcontracting.
XECO shall be entitled at all times to assign its rights under the contract (in
whole or in part) or to subcontract any part of the work or services to be
provided under the contract as it deems necessary or desirable.
15)
Notices.
Any notice hereunder shall be deemed to have been given if sent by prepaid first
class mail to the party concerned at its last known address. Notice to XECO
shall be to the office located at XECO Inc, Attention: Legal Office,
1651 N. Bulldog, Cedar City, UT., 84720.
16)
Waiver.
Failure by XECO to exercise or enforce any rights hereunder shall not be deemed
to be a waiver of any such right nor operate so as to bar the exercise or
enforcement thereof at any time or times thereafter.
17)
Applicable law.
Unless otherwise agreed in writing, the terms and conditions contained herein
shall be governed by and construed under the laws of the State of Utah, USA.
