ACCEPTANCE. Any proposal by SELLER shall become a binding contract between the parties only if and when it has been accepted by the BUYER either by issuing an appropriate purchase order incorporating SELLER’s offer by reference or by accepting any of the equipment described herein. In any event, any terms proposed in BUYER’s acceptance of SELLER’s offer which add to, vary from, or conflict with the terms herein are hereby objected to and any such proposed terms shall be void and the terms herein shall constitute the complete and exclusive statement of the terms and conditions of the contract between the parties and may hereafter be modified only by written instrument executed by the authorized representatives of both parties. If this writing has been issued by SELLER in response to an offer from BUYER and if any terms herein are additional to or different from any terms of such offer, then the issuance of this writing by SELLER shall constitute an acceptance of such offer subject to the express condition that the BUYER assent to such additional and different terms therein and acknowledge that this writing constitutes the entire agreement between BUYER and SELLER with respect to the subject matter hereof and the subject matter of such offer, and BUYER shall be deemed to have so assented and acknowledged unless BUYER notifies SELLER to the contrary in writing within ten (10) days of receipt of this writing.
PRICE. The price for the equipment shall be as set forth on the face hereof. All prices are FCA SELLER’s factory at Rousse, BULGARIA, and unless otherwise stated, exclude freight, insurance charges, assembly, testing and inspection fees, sales, use, franchise, license, excise and other taxes in respect of manufacture, sale or delivery, and export and import duties, all of which shall be paid by BUYER, unless in the case of taxes, a proper exemption certificate is furnished.
TERMS OF PAYMENT. Unless otherwise provided on the face hereof and subject to credit approval, terms of payment shall be net 30 days on shipped product invoice date. SELLER reserves the right to apply interest to any overdue payment at a rate to be specified by SELLER. SELLER may, at any time, alter or suspend credit, withhold shipments or cancel unfilled orders, in whole or in part, when in its opinion the financial condition of BUYER, or the status of its account, warrants it or when delivery is delayed by fault of BUYER or when BUYER is delinquent in any payment. BUYER shall make all payments to SELLER, without expense to SELLER as per specific SELLER’s instructions.
DELIVERY AND DELAYS. Unless otherwise agreed between the SALLER and the BUYER, delivery will be FCA SELLER’s factory at Rousse, BULGARIA, and BUYER assumes all responsibility for risk of loss of, or damage to, the equipment furnished hereunder upon delivery FCA SELLER’s factory. When the negotiated price includes delivery by SELLER, either in whole or in part, SELLER shall have the right to select the means of transportation. If BUYER requires a means of transportation other than that selected by SELLER, BUYER shall pay any additional freight cost, if any. All delivery dates are estimates only, based upon SELLER’s best judgment, and are subject to change upon notice from SELLER. SELLER shall not be liable to BUYER for any loss or damage, direct or consequential, caused by delay in delivery. SELLER may deliver by installments, unless specifically instructed by the BUYER for delivery in full and failure by BUYER to accept or pay for any installment may be treated by SELLER as a repudiation of the whole contract. SELLER shall not be responsible for delays resulting from: accidents; acts of God; labor difficulties from whatever cause arising; natural disasters; fires; weather; explosions; earthquakes; epidemics or quarantine restrictions; war or civil riots; freight embargoes or transportation delays; shortages of labor; machine breakdown; inability to secure fuel, goods, supplies or power at current prices or on account of shortages thereof; any existing or future laws, acts, regulations, orders or decrees of any agency or body of the Governments of SELLER or BUYER affecting the conduct of SELLER’s business or any other causes similar or dissimilar beyond the reasonable control of the SELLER.
CANCELLATION. Orders, once placed with and accepted by SELLER, will not be subject to cancellation either in whole or in part, without SELLER’s written consent and then only under terms that will reimburse SELLER for all applicable costs incurred by it, including, but not limited to, costs of purchased goods and equipment, engineering and design costs, and labor costs, plus a reasonable profit, provided that in no event shall the cancellation charge be less than fifteen percent (15%) of the contract price.
WARRANTIES. SELLER warrants that the equipment supplied hereunder which is manufactured by SELLER will be free of defects in material and workmanship for six (6) months from the original date of shipment. BUYER shall notify SELLER promptly of any breach of the foregoing warranty. Whether this warranty has been breached shall be determined by an inspection by SELLER which may be made at BUYER’s plant. The obligation of SELLER and BUYER’s sole and exclusive remedy hereunder shall be limited, at SELLER’s option, to either (1) furnishing replacement parts or equipment, or (2) repairing defective parts or equipment in the field, or at the point of manufacture upon return thereof. Notwithstanding the foregoing warranty and remedies. SELLER shall have no obligation hereunder if the equipment becomes defective in whole or in part as a result of removal, improper use, use in excess of or beyond rated capacities, alteration or misapplication of the equipment or part. Notwithstanding the foregoing warranty and remedies. SELLER shall also have no obligation hereunder if the defective equipment has, in SELLER’s opinion, been maltreated so as to cause further damage. Equipment and parts made by other manufacturers are warranted only to the extent of the original manufacturer’s warranty to SELLER. SELLER shall not be responsible for the correctness, adequacy, or consistency of any information furnished by others including but not limited to dimensions, field measurements, material specifications, coating, structural design or details, placing plans or bills of material.
LIMITATION OF LIABILITY. IN NO EVENT SHALL SELLER BE LIABLE FOR ANTICIPATED PROFITS OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. Seller’s liability on any claim of any kind, for any loss or damage arising out of, connected with or resulting from this agreement, or from the performance or breach thereof, or from the manufacture, sale, delivery, resale, inspection, repair, operation or use of any equipment covered by or furnished under this agreement, shall in no case exceed the price allocable to such equipment or unit thereof which gives rise to the claim and shall terminate six (6) months after shipment of the equipment. SELLER shall not be liable for penalties of any description. BUYER agrees to indemnify and save harmless SELLER where charges or law suits alleged patent or other infringement is the result of the design or other special requirements specified by BUYER or the result of the application or use to which such equipment is put by BUYER, or by others.
INDEMNIFICATION. BUYER agrees to indemnify and save harmless SELLER from and against all losses. liabilities or claims for injuries or damages to any person or property, whether on account of negligence or otherwise, arising out of, or in any way related to, the condition, use or repair of the equipment purchased hereby and further from and against any judgment, settlement, penalty, loss, costs, expenses, liability, damage or injury, including legal fees and disbursements, that SELLER may directly or indirectly sustain, suffer or incur as a result thereof.
TITLE AND REMEDIES. Shipments and deliveries shall be subject to approval of SELLER’s Credit Department. Until full payment of all obligations of BUYER hereunder, SELLER reserves the title to and a security interest in all equipment furnished hereunder, which, whether or not attached to realty, shall be considered to be personal property. If BUYER defaults in payment or performance hereunder or becomes subject to insolvency, receivership or bankruptcy proceedings or makes an assignment for the benefit of creditors or without the consent of SELLER voluntarily or involuntarily sells, transfers, leases or permits any lien or attachment on the equipment delivered hereunder or if the equipment is misused or substantially damaged, SELLER may treat all amounts then or thereafter owing hereunder by BUYER to be immediately due and payable and SELLER may repossess said equipment by any means available at law. In any proceeding or action relating to a default by BUYER, SELLER shall be reimbursed (if permitted by law) for attorney’s fees and costs incurred by it in respect thereof.
COMPLIANCE WITH LAWS. SELLER makes no representation as to compliance of the equipment furnished hereunder with any law, rule, regulation or ordinance of national, state or local government, or any other governmental agency which may in any way be applicable to the manufacture, sale or performance of the goods furnished hereunder.
GENERAL. Notice given to SELLER and BUYER shall be given to the respective addresses set forth on the face hereof. BUYER must within thirty (30) days after BUYER discovers or should have discovered any breach, notify SELLER of such breach or be barred from any remedy. Any action resulting from any breach on the part of SELLER as to the equipment delivered hereunder must be commenced within one (1) year after the cause of action has accrued. Waiver by SELLER of a breach by BUYER of any provision of this contract shall not be deemed a waiver of future compliance therewith, and such provision, as well as other provisions hereunder, shall remain in full force and effect. Each provision of this contract is severable and, in the event that any one or more thereof may be declared invalid, the remainder of this agreement shall nevertheless remain in full force and effect. The rights and duties of the parties hereto shall be determined by the laws of the European Union, and to that end this agreement shall be construed and considered as a contract made and performed in the European Union.