Authorized Fabricator
& Distributor:
Momentive Performance
Materials
HeraeusTOSOHQsil

  

TERMS AND CONDITIONS OF SALE

 

ACCEPTANCE

All orders are subject to G.M. Associates, Inc. (Seller’s) written approval and acceptance at its office in Oakland, and shall not become binding obligations of Seller unless and until Seller has accepted such order.  Sales of goods hereunder are subject to and include the Terms and Conditions of Sale set forth herein and are expressly conditioned upon Seller’s assent to any Terms and Conditions of Sale herein which are additional to or different from any terms or conditions of sale contained in any purchase order submitted by Buyer.  Without limiting the generality of foregoing, no acknowledgment by Seller of or reference by Seller to of for performance by Seller under any purchase order submitted by Buyer shall be redeemed to be an acceptance by Seller of any terms or conditions contained such purchase order which are additional to or contrary to the Terms and Conditions of Sales contained herein.

Seller requires a minimum order of $50.00 for domestic and $250.00 for international orders. 

Notwithstanding the quantity set forth on Buyer’s purchase order, Buyer shall accept and purchase product in a quantity which may be plus-or-minus ten percent (10%) of the quantity ordered, due to overruns and/ or under runs in Seller’s production process.

REPRESENTATIONS – WARRANTIES

Seller warrants that the goods sold hereunder (i) shall be free from defects in workmanship and (ii) shall conform in all material respects to the specifications set forth in Buyer’s purchase order as accepted by Seller.  Buyer’s sole and exclusive remedy for Seller’s breach of warranty shall be limited to, at Seller’s option, (i) repairing or replacing goods that are proven to be defective or proven not to conform in all material respects with such specifications or (ii) refunding the sales price received by Seller in respect of such defective or nonconforming goods; provided, however that (1) notice of such defect or nonconformity shall be given to Seller within thirty (30) days of delivery of such defective or nonconforming goods and (2) where goods are replaced by Seller or where Seller refunds the sales price received from Buyer, Buyer shall return the defective or nonconforming goods to Seller. Seller shall not be responsible for any other damage or loss sustained by Buyer or any third party.

Recommendations by Seller, if any, covering the use, utilization, properties and / or qualities of goods sold hereunder are believed reliable but Seller makes no warranty whatsoever with respect thereto. Use or application of goods sold hereunder is at the discretion of Buyer without any liability or obligation on the part of Seller except as expressly warranted by Seller.

The warranties set forth in this Section 2 constitute the only warranties given by Seller and are in lieu of any and all other warranties, express or implied, arising by law or custom, including, but not by way of limitation, the implied WARRANTY OF MERCHANTABILITY and the implied WARRANTY OF FITNESS FOR PARTICULAR  PURPOSE.  Any samples submitted by Seller shall not be deemed to create any warranties, express or implied.

PRICE

The purchase price (“Purchase Price”) for the goods sold hereunder shall be as set forth on the purchase order and acknowledgement, however, if all or any part of the goods to be purchased hereunder are to be delivered by Seller to Buyer as of a date which is more than ninety (90) days after the date of Buyer’s purchase order, Seller may, at any time on notice to  Buyer, given not later than thirty (30) days prior to delivery, with respect only to goods to be delivered more than ninety (90) days after the date of Buyer’s purchase order, increase the Purchase Price for such goods and (i) if such increase in Purchase Price is not less than or equal to fifteen percent (15%) of the original Purchase Price, such price increase shall be binding, upon Buyer, but (ii) if such increase in Purchase Price is greater than fifteen percent (15%), Buyer shall be entitled to cancel its order with respect only to such goods which are subject to such increase in Purchase Price. In no event shall Seller be liable to Buyer for any damages suffered by Buyer or any claims made by third parties against Buyer, by reason of any such increase in Purchase Price of Buyer’s election to cancel its order as a result of any such increase in Purchase Price, even if Seller shall have been advised of the possibility or existence of any such damages or claims.

Seller’s prices do not include sales, use, excise or similar taxes, and accordingly, in addition to the price specified, the amount of any sales, use, excise or other similar tax applicable to the sale of goods hereunder shall be paid by Buyer, or, in lieu thereof, Buyer shall provide Seller with a tax exemption certificate issued by the appropriate taxing authority.

PAYMENT

For Buyers with approved credit, payment on invoices shall be due and payable within thirty (30) days after invoice/shipping date. 

Any amounts payable to Seller hereunder which are not paid when due shall thereafter bear interest at the rate of one and ½ percent (1.5%) per month or the maximum amount permitted by applicable law, whichever is less. Time is of the essence of all payments due hereunder.  In the event any payment due Seller is collected at law, or through an attorney-at-law or under advice therefrom, or through a collection agency, Buyer agrees to pay all costs of collection, including without limitation, all court costs and reasonable attorneys’ fees.

Any check or remittance received from or for the account of Buyer may be accepted and applied by Seller against any indebtedness or obligation owing by Buyer to Seller, as shown on the books and records of Seller, without prejudice to and without discharging the remainder of any such indebtedness or obligation, regardless or any condition, provision, statement, legend or notation appearing on, referring to or accompanying such check or remittance.  A $50.00 fee will be charged for returned checks.

Buyer will accept Master Card, Visa, American Express and Discover credit cards only at the time the order is placed.  Account balances cannot be paid with credit card.

DAMAGES

Force Majeure.  Any delays in or a failure of performance by Seller shall not constitute default or give rise to any claims for damages if and to the extent caused by circumstances beyond Seller’s control, directly or indirectly, such as, but not limited to: fire, flood, earthquake, the elements, acts of God; accidents or unavoidable casualties; wars (whether declared or undeclared), rebellions, insurrections or revolutions in any country; riots or civil disorder; strikes; lockouts or labor difficulties; acts, rulings, regulations, decisions or requirements of any tribunal or government agency, board or official; interruptions of transportation facilities or delays in transit; supply shortages, or the failure of any third party to perform any commitment to Seller relative to the manufacture or delivery of the goods; or any other cause, whether similar or dissimilar to the causes enumerated herein, beyond the reasonable control of Seller.

LIMITATION OF LIABILITY. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER, WHETHER IN CONTRACT OR IN TORT, OR NAY OTHER LEGAL THEORY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SALE, DELIVERY OR NON DELIVERY, CONDITION OR POSSESSION OF ANY OF THE GOODS SOLD HEREUNDER, OR FOR ANY CLAIM MADE AGAINST BUYER BY ANY OTHER PARTY, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM.  IN NO EVENT SHALL SELLER’S LIABILIT UNDER ANY CLAIM MADE BY BUYER EXCEED THE PURCHASE PRICE OF THE GOODS SOLD HEREUNDER IN RESPECT OF WHICH SUCH CLAIM IS MADE.

SHIPMENTS

Shipment and delivery dates are based upon Seller’s best judgment, are subject to factory schedules and production limitations, and hence are not guaranteed.

All goods will be shipped F.O.B. Seller’s plant.  When goods are shipped F.O.B. Seller’s plant, (i) any arrangements made or expenses incurred by Seller for carrier or insurance of goods after delivery shall be for the account of Buyer and promptly paid or reimbursed to Seller by Buyer, in which event, unless Buyer specifies complete instructions as to the method of payment, Seller may exercise its judgment and discretion in choosing the carrier and means of shipment and (ii) Buyer is responsible for notifying the carrier as to any damages to or loss in transit of such goods.

International orders will be charged a $50.00 processing fee.

In addition to any other remedy available to Seller at law or in equity, if Buyer fails to fulfill the terms of payment, Seller may defer further shipments of goods or may, at its option, cancel the unshipped balance of such goods and bill Buyer for cost of cancellation.

Seller reserves the right prior to making any shipments of goods to request from Buyer satisfactory security for performance of Buyer’s obligations hereunder.

DELIVERIES

In the event Seller defers delivery at Buyer’s request, Buyer shall indemnify Seller against any and all loss and additional expense incurred by Seller in connection with such deferred deliveries, including, without limitation, demurrage, handling, storage, insurance and similar charges. Transfer to storage shall be considered delivery of all purposes hereunder, including invoicing and payment, and Buyer shall bear all risks of loss or damages to the goods during storage.

Seller may deliver goods in partial shipments and reserves the right to invoice for partial deliveries.  Payment of partial deliveries shall be made in accordance with the payment terms provided herein unless otherwise agreed.

Where Buyer has declared or manifested an intention not to accept delivery in accordance with provisions hereof, no tender shall be necessary, but Seller may, at its option, give notice in writing to Buyer that Seller is ready and willing to deliver in accordance with provisions hereof, and such notice shall constitute a valid tender of delivery.

INSPECTION / LIMITATION OF ACTIONS

Buyer shall promptly inspect and test the goods upon delivery.  Anything herein to the contrary notwithstanding, to the extent that any defects or nonconformities in the goods are discoverable by inspection upon delivery of the goods to Buyer, all obligations of Seller to Buyer with respect to such defects or nonconformities shall be deemed to be satisfied, and all goods shall be deemed to be free of such defects or nonconformities, unless Buyer notified Seller of such defects or nonconformities not more than thirty (30) days after the date of delivery referencing Seller’s packing slip number. Buyer must obtain a return material authorization (RMA) number, and follow instructions on how to return goods for Seller’s evaluation.  Seller is not responsible for goods returned without an RMA number or goods returned not following Seller’s RMA instructions.  RMA numbers will be valid for thirty (30) days.  Goods not returned to Seller within the RMA thirty (30) day time frame will be deemed accepted by Buyer, and RMA will be cancelled.

With respect to any claims for shortages, breakage, etc. such claims shall not be accepted by Seller unless they are made by Buyer  within ten (10)days after delivery of the goods, and are accompanied by a reference to Seller’s packing slip number.  Buyer is responsible for reporting damage to carriers immediately.  Do not discard the packing material or parcel, or proceed with unpacking, until carrier or its agents has completed the damage report necessary to substantiate your claim for reimbursement.  G.M. Associates, Inc. is not responsible for breakage.  Your sole recourse for breakage is with your delivering carrier and/or any available insurance claim.

If Buyer requests return of certain goods caused by no fault of Seller, and Seller agrees to take goods back, a restocking charge of 20% will apply.  Buyer must notify Seller of such request not more than ten (10) days after the date of delivery referencing Seller’s packing slip number.  RMA procedures must be followed in such cases, Seller will issue credit to account or credit card.  No cash or check refunds.  “Special order” or “made to order” goods cannot be returned or cancelled.

No action, regardless of form, arising out of or in connection with the sale of the goods sold hereunder (other than an action by Seller of any amount due to Seller by Buyer) may be brought more than one (1) year after the cause of action has arisen.

 

CHANGES, CANCELLATIONS

Specifications changes made subsequent to obtaining a quote or placing an order are subject to price revisions and to any adjustment necessary to cover material procured and processed and labor expended prior to receipt of revised specifications.

Except as provided in Section 3(a) hereof, cancellations shall be only by mutual agreement in writing, based on any adjustment necessary to cover labor expended and material procured.

WAIVER.  Buyer hereby waives demand, presentment, dishonor, protest, notice of nonpayment, notice of default, and any and all other demands or notices whatsoever.  Except as otherwise expressly provided hereunder, no failure on the part of Seller to exercise, and no delay by Seller in exercising any right, power or remedy hereunder, shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy by Seller preclude any other or further exercise thereof or the exercise of any other gift, power or remedy.  No express waiver of or assent by Seller to any breach of or default in any term or condition hereof shall constitute a waiver of or assent to any succeeding breach of or default in the same of any other term of condition hereof.

GOVERNING LAW / FORUM.  Regardless of the place of contracting, place of performance or otherwise, this document and all amendments, modifications, alterations or supplements hereto, and the rights of the parties hereunder shall be construed and enforced in accordance with the laws of the State of California. If any controversy or claim between the parties arises under or relating to the transactions contemplated herein, only the Superior Court of California, County of Alameda, shall have exclusive jurisdiction and be the sole venue for resolution of any disputes arising in connection with the agreement.  Buyer hereby irrevocably (a) consents to the jurisdiction and venue of the Superior Court of California, County of Alameda, in any action arising under or relating to the transactions contemplated herein, and (b) waives any and all jurisdictional defenses Buyer may have to the institution of any such action in any such court.

SEVERABILITY.  All rights and restrictions contained herein may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render any terms and conditions herein illegal, invalid or unenforceable.  If any term or condition contained herein shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining terms and conditions hereof shall constitute their agreement with respect to the subject matter hereof and all such remaining terms and conditions shall remain in full force and effect.

ENTIRE AGREEMENT. The Terms and Conditions contained herein supersede all prior discussions and agreements between the parties with respect to the subject matter hereof, and this document contains the sole and entire agreement between the parties with respect to the matters covered hereby.  The sole terms and conditions applicable to the sale of goods hereunder are those set forth herein. Any different or additional terms and conditions appearing in your purchase order (if any) and other communication concerning the purchase of goods shall be ineffective and not a part hereof, unless expressly incorporated herein by reference.  The Terms and Conditions of Sale contained herein may not be modified or amended except by an instrument in writing signed by one of Seller’s duly authorized officers.  Unless, within five (5) days of your receipt hereof, you deliver to Seller written objection to the Terms and Conditions of Sale, you shall be deemed to have accepted each and every one of the terms and conditions contained herein.

NOTICES.  All notices, requests, demands or other communications required or permitted to be given or made hereunder shall be in writing and delivered personally or sent by pre-paid, first class, certified or registered air mail, return receipt requested, or by telex or facsimile transmission to the intended recipient thereof at the address, telex number or facsimile number appearing on the front hereof.  Any such notice, demand, or communication shall be deemed to have been duly given immediately (if given or made by a confirmed telex or facsimile) or five (5) days after mailing (if given or made by letter addressed to a location within the country in which it is posted), or fourteen (14) days after mailing (if given or made by letter addressed to a location outside the country in which it is posted), and in providing same, it shall be sufficient to show that the envelope containing the notice, demand or communication was duly addressed, stamped and posted, or that receipt of telex message or facsimile was confirmed by the recipient.  Either party may change the address, telex number or facsimile number to which notices, requests, demands or other communications to such party shall be mailed or sent by giving notice to the other party in the manner provided herein.

LIMITATION ON ASSIGNMENT.  Neither party to this transaction may assign all or any portion of its rights hereunder, or delegate or subcontract all or any portion of its obligations hereunder, without the prior written consent of the other party.

GENERAL

Goods are sold in compliance with Seller’s standard tolerances, except when otherwise agreed to by both parties.

When furnished or made by Seller, tools and /or dies, together with incidental fixtures and materials necessary for the manufacture of goods ordered, shall remain the property of Seller, be used in the production of goods for Buyer, and be kept in repair by Seller without further charge for the reasonable life expectancy of the tool or dies.  Payment to cover the cost of such tools and / or dies shall be added to the contract and shall be invoiced upon the first shipment of ordered goods.  Seller shall have the right to scrap tools and / or dies without notice to Buyer.  If a tool is supplied by the customer without any intervention of Seller, then it is considered the property of the Buyer and will be returned upon request.

In regard to all purchase orders and transactions in which Buyer submits parts, equipment, or other materials (“Materials”) to Seller for repair or modification.  Buyer shall be solely responsible for the quality and accuracy of all data provided to Seller including Buyer’s requirements and specifications for repair or modification of Materials. Seller makes no warranties, guarantees, or representations of any kind, express or implied, with respect to repair or modification of Materials, including, without limitation, any implied warranty of success, merchantability, or fitness for a particular purpose.  Seller shall have no responsibility or liability for any loss, damage, or breakage to Materials regardless of when or where it occurs, and regardless of any actual alleged negligence or fault on the part of Seller. Notwithstanding the foregoing, in the event that Materials suffer loss, breakage, or damage during the Seller’s manufacturing process, solely as a result of the negligence of Seller, Seller shall repair such Materials (if practicable) or repair or modify identical Materials to be provided by Buyer at its own expense. The sole liability of Seller with respect to any repair or modification of Materials shall be as stated herein. Neither Seller nor any of its officers, directors, employees, agents, contractors, or representatives shall be liable for any harm, loss, or injury, or any punitive, direct, indirect, incidental, consequential, or special damages to Customer or any other person or entity arising out of any actual or alleged breach of the provisions of these terms, or any breach of warranty, misrepresentation, negligence, or fault in any way relating to the repair or modification of Materials.

Buyer shall protect, defend, indemnify and hold Seller and its officers, employees, agents, licensees and representatives (collectively, the “Indemnities”) harmless from and against any and all claims, suites, losses, liabilities, expenses (including cost of suit and attorneys’ fees), and damages relating to, resulting from or arising out of any alleged or actual defect in any of the goods sold hereunder, except in the case of gross negligence of Seller.  Buyer shall give Seller notice of any such action or proceeding and shall tender the defense to Seller.  Buyer shall defend Seller, with respect to each and every claim for which Seller is indemnified by Buyer under this Agreement.

The terms “written” and “in writing” used herein shall include documents or communications transmitted electronically, including, without limitation, by way of electronic data interchange.

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