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Standard Terms & Conditions of Sale
Ophir-Spiricon Inc. (“Ophir-Spiricon”) provides the following Standard Terms and Conditions of Sale (“Terms and Conditions”), which apply to all quotations and sales made by Ophir-Spiricon. All purchases of products (“Goods”) from Ophir-Spiricon by customer, owner, or its agent (“Purchaser”) are subject to these Terms and Conditions, and no provision printed or otherwise, contained in any order, acceptance, confirmation, or acknowledgement which is inconsistent with, different from, or in addition to these Terms and Conditions is accepted by Ophir-Spiricon unless specifically agreed to in writing by a duly authorized officer of Ophir-Spiricon.
ORDERS: By submitting an order to Ophir-Spiricon, Purchaser agrees to be subject to these Terms and Conditions of Sale in their entirety. All orders must be bona fide commitments showing mutually agreed to prices, quantities and shipping dates. If an order is submitted to Ophir-Spiricon in response to a written Ophir-Spiricon quotation, the order must contain the Ophir-Spiricon Quotation number. No order or other commitment, whether or not submitted in response to a quotation by Ophir-Spiricon, shall be binding upon Ophir-Spiricon until such order or other commitment is accepted in writing by Ophir-Spiricon. Acceptance of Purchaser’s order by Ophir-Spiricon is subject to verification of Purchaser’s credit worthiness.
TIME LIMIT. All quotations are valid for a period of thirty (30) days, unless otherwise specified.
SHIPMENT. Pricing and shipping terms shall be FOB Ophir-Spiricon plant in Utah. If the Purchaser has not issued inspection or shipping instructions by the time the Goods are ready for shipment, Ophir-Spiricon may select any reasonable method of shipment, without liability by reason of its selection. Shipments made on Purchaser’s behalf shall be insured at Purchaser’s expense. If Ophir-Spiricon is required to arrange for shipment of the Goods or any parts thereof, Purchaser shall reimburse Ophir-Spiricon for all freight, insurance and other shipping related costs and Purchaser will pay Ophir-Spiricon a handling fee for each such shipment. Shipment of Goods held by reason of Purchaser’s request or inability to receive Goods will be at the risk and expense of Purchaser. Claims for shortages in shipment shall be deemed waived unless made in writing to Ophir-Spiricon within ten (10) days from the date of invoice.
PAYMENT TERMS. Payments will be made in accordance with the specified payment schedule in the purchase order that was accepted by Ophir-Spiricon. All payments are due net thirty (30) days from the date of invoice, unless otherwise specified in a purchase order accepted by Ophir-Spiricon. Purchaser’s failure to make payment when due will be a material breach of the order and these Terms and Conditions. Ophir-Spiricon, at its sole discretion, may charge the Purchasers for a late fee of 1.5% per month on the outstanding amount until the date of actual payment. In addition, Ophir-Spiricon, at its sole discretion and without incurring any liability, may suspend its performance until such time as the overdue payment is received or until written approval byOphir-Spiricon of an alternative payment schedule has been issued. In the event of such suspension of performance by Ophir-Spiricon, there will be an equitable adjustment made to the delivery schedule and order price reflecting the duration and cost resulting from such suspension. Purchaser may only suspend the order upon Ophir-Spiricon’ written consent. In the event of such Purchaser’s order suspension, the delivery time will be changed, taking into account the suspension, and Purchaser will promptly pay Ophir-Spiricon for all costs and related overhead costs resulting from such suspension. Ophir-Spiricon will equitably re-price the Goods and services if the cumulative suspension exceeds ninety (90) days. If in the judgment of Ophir-Spiricon, Purchaser’s financial position does not justify the terms of payment specified, Ophir-Spiricon may require full or partial payment prior to shipment of the Goods. Purchaser agrees to furnish Ophir-Spiricon with the required credit information. Payments for all export shipments will be in accordance with the specified payment schedule in a purchase order accepted by Ophir-Spiricon by way of an irrevocable Letter of Credit, established in favor of Ophir-Spiricon, Inc. drawn on and confirmed by a prime U.S.A. bank that is approved by Ophir-Spiricon. This Letter of Credit is to be established at the time of award of an order. All costs associated with the Letter of Credit will be charged to the Purchaser’s account.
TAXES. Federal, state, or local indirect taxes, including but not limited to sales and/or use taxes, VAT taxes, GST taxes, transfer taxes or any similar tax are not included in the prices set forth herein. In the absence of proper evidence of exemptions supplied to Ophir-Spiricon, Purchaser will reimburse Ophir-Spiricon for all taxes, excises, duties, imposts or other charges which Ophir-Spiricon may be required to pay any government (national, state or local) upon, or measured by the production of any phase or part of the production, storage, sale, transportation, delivery and/or use of the Goods.
Ophir-Spiricon’ liability for breach of warranty shall be limited to, in Ophir-Spiricon’ sole discretion, (i) repairing or replacing Goods that Ophir-Spiricon determines do not conform to the foregoing warranty, or (ii) refunding the sales price received by Ophir-Spiricon in respect of the non-conforming Goods. This remedy shall be the Purchaser's sole and exclusive remedy for any defect or nonconformity in the Goods. This warranty extends only to the immediate purchaser from Ophir-Spiricon and does not extend, expressly or impliedly, to any other party.
In no event shall Ophir-Spiricon incur any obligation to repair or replace Goods which are determined by Ophir-Spiricon, at its sole discretion, to be defective due to (i) installation, maintenance, operation, modification, alteration, accident, neglect or use in any way other than in strict compliance with Ophir-Spiricon' published specifications for the Goods, (ii) the failure to maintain appropriate environmental conditions, as communicated by Seller, (iii) as the result of the use of unauthorized parts or repairs, or unauthorized modifications (iv) any repair work on the product that is performed by the Purchaser or any third party on behalf of the Purchaser (other than Ophir-Spiricon), or (v) modification or alteration of the Goods such that Ophir-Spiricon is unable to verify the defect with its standard test equipment.
EXCEPT FOR THE EXPRESS LIMITED WARRANTY STATED HEREIN, THE GOODS ARE SUPPLIED ON AN "AS IS" BASIS AND PURCHASER'S USE OF THE GOODS IS AT PURCHASER'S RISK. OPHIR-SPIRICON DOES NOT MAKE AND HEREBY DISCLAIMS ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES WITH RESPECT TO THE GOODS, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE AND ANY WARRANTIES OF NONINFRINGEMENT AND TITLE.
GENERAL; INTELLECTUAL PROPERTY. When furnished, designed, developed and/or manufactured by Ophir-Spiricon, all tools and/or dies, together with incidental fixtures and materials necessary for the manufacture of Goods ordered, shall remain the property of Ophir-Spiricon. All tools, dies, fixtures and/or materials will be maintained for one (1) year after shipment. Unless otherwise agreed to in writing by Ophir-Spiricon, Ophir-Spiricon shall own all right, title and interest in and to the patent, design and other intellectual property rights in and to all products sold to Purchaser hereunder, and nothing contained herein shall give Purchaser any right to utilize any such intellectual property in any manner whatsoever except in connection with Purchaser’s use of the applicable product in accordance with the documentation for the same provided by Ophir-Spiricon. Goods are sold to accepted manufacturing variations or tolerances, except when otherwise agreed to by both parties. Except for Goods that are manufactured to specifications provided by Purchaser, Ophir-Spiricon represents and warrants that Purchaser’s use of the products sold by Ophir-Spiricon hereunder in accordance with Ophir-Spiricon specifications and documentation for the same will not infringe upon any United States patent. Ophir-Spiricon will defend, indemnify and hold Purchaser harmless of, from and against any and all claims and expenses, including court costs and attorney fees, arising out of Ophir-Spiricon’ breach of this section; provided that Ophir-Spiricon will have no obligation to indemnify Purchaser for any claims arising out of (i) Purchaser’s use of the products in combination with any process or other products, or (ii) any drawings or specifications provided by Purchaser in connection with the products. If Purchaser provides specifications or drawings for the product to Ophir-Spiricon, Purchaser represents and warrants to Ophir-Spiricon that Ophir-Spiricon’ use of the same in the manufacture of the products for Purchaser will not infringe upon the patent, design, trade secret or other intellectual property rights of any person or entity, and Purchaser agrees to defend, indemnify and hold Ophir-Spiricon harmless of, from and against any and all claims and expenses, including court costs and attorney fees, arising out of Purchaser’s breach or alleged breach of this section.
SOFTWARE: Ophir-Spiricon shall at all times have and retain title and full ownership of all software, firmware programming routines, and documentation thereof supplied by Ophir-Spiricon for use with the Goods, and of all copies thereof made by Purchaser (collectively “Software”). Ophir-Spiricon grants Purchaser a non-exclusive and non-transferable license to use the Software solely for use with the Goods. Purchaser shall take all reasonable steps to protect Ophir-Spiricon’s proprietary interest in the Software and shall not transfer or otherwise provide the software to any third party.
CHANGES, CANCELLATIONS, RETURNS. Specification changes made after Purchaser places an order are subject to price adjustments and to Ophir-Spiricon' written approval and Purchaser will reimburse Ophir-Spiricon for all loss and expenses incurred by Ophir-Spiricon arising out of such change. Cancellations shall be by mutual agreement in writing, provided that Purchaser will reimburse Ophir-Spiricon for all loss and expenses incurred by Ophir-Spiricon arising out of such cancellation.
If, for some reason the product does not perform as expected, you may return undamaged and “as new” items within 30 days of the original ship date. Ophir-Spiricon will pay the return shipping costs if the product is defective or the return is a result of our error. If the item is returned for any other reason you are responsible for the return shipping costs. No Goods shall be returned without first obtaining a Return Material Authorization (RMA) number which must be clearly marked on the outside of the shipping container. Upon inspection to confirm an undamaged condition Ophir-Spiricon will credit you in the same manner as your original payment. You may be charged a restocking fee of 15 percent. If, upon inspection, the return materials are not judged to be in “as new” and undamaged condition the materials will be returned to you with full payment expected. Returns are not allowed for goods sold as non-returnable/non-refundable.
TITLE AND RISK OF LOSS OR DAMAGE. Title, risk of loss and/or damage will pass to the Purchaser upon shipment of the Goods.
GOVERNING LAW & JURISDICTION. All matters involving the validity, interpretation, and application of these Standard Terms and Conditions of Sale will be controlled by the laws of the State of Utah, United States of America. All disputes arising out of this Standard Terms and Condition of Sale or related to its violation or execution will be submitted to the exclusive jurisdiction of the competent court of law in Utah, United States of America.
CONSEQUENTIAL DAMAGES; LIMITATION OF LIABILITY. IN NO EVENT SHALL OPHIR-SPIRICON BE LIABLE TO PURCHASER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF PROFIT, COSTS OF DELAY, ANY FAILURE OF DELIVERY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, COST OF REMOVAL AND REINSTALLATION OF GOODS, LOSS OF GOODWILL, INTERRUPTION OF BUSINESS, LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE OR OTHER ECONOMIC LOSS, WHETHER OR NOT PURCHASER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES AND WHETHER SUCH DAMAGES ARE ALLEGED AS A RESULT OF TORTIOUS CONDUCT, BREACH OF CONTRACT OR OTHERWISE.
OPHIR-SPIRICON' TOTAL LIABILITY FOR EACH DEFECTIVE PRODUCT, INCLUDING WITHOUT LIMITATION INTELLECTUAL PROPERTY INDEMNIFICATION, SHALL NOT EXCEED THE PRICE OF SUCH PRODUCT.
FORCE MAJEURE. No liability shall result from delay in performance or non-performance (except with respect to payment by Purchaser) to the extent that it results from any cause (including without limitation, weather, fire, strike or other labor difficulty; breakdown, shortage of or inability to obtain materials, equipment or transportation; act, order, regulation or request of governmental body or court; or other force majeure beyond the reasonable control of the party affected or obligated hereunder. If Ophir-Spiricon’ supply of Goods is limited by any such cause, Ophir-Spiricon shall have the right to prorate Ophir-Spiricon’ available supply over Ophir-Spiricon’ own manufacturing requirements and Ophir-Spiricon’ commitments to its customers as Ophir-Spiricon considers fair.
EXPORT. Ophir-Spiricon' obligation to deliver the Goods to Purchaser outside the U.S. shall be at all times subject to all applicable export laws and regulations and conditioned upon the receipt of an appropriate export license, when such license is required under applicable laws and regulations. Regardless of any disclosure made by Purchaser to Ophir-Spiricon of an ultimate destination of Ophir-Spiricon products, Purchaser will not export either directly or indirectly any Ophir-Spiricon product, or any system incorporating said product, without first obtaining all required licenses and permits from the United States Department of Commerce and any other relevant agencies or departments of the United States government.
NON-WAIVER OF DEFAULT; REMEDIES: In the event of any default by Purchaser under this or any other contract between Ophir-Spiricon and Purchaser, Ophir-Spiricon may decline to make further shipments. If Ophir-Spiricon elects to continue to make shipments, Ophir-Spiricon’s action shall not constitute a waiver of any default by Purchaser or in any way affect Ophir-Spiricon’s legal remedies for any such default. All Ophir-Spiricon’s rights and remedies, whether evidenced hereby or by any other contract or document, shall be cumulative and nonexclusive and may be exercised singularly or concurrently.
HEADINGS. The headings used throughout are for convenience only and will be disregarded for the purpose of construing and enforcing these Terms and Conditions.
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